A Critique of the Ontology of Intellectual Property Law (Cambridge Intellectual Property and Information Law, Series Number 57)

"Intellectual property law is based on a specific notion of reality. According to this understanding, there exist immaterial objects which are exclusively assigned to a rights holder.1 Unlike corporeal objects ('things'),2 these immaterial objects cannot be touched, nor can their physical existence be measured as with intangible, yet still physical data or software.3 They are also not identical with specific exemplars of a copyrightable work (e.g. a book or a digital file), with products, mechanical or other technical processes, with product signs on packaging or advertising material, etc. Instead the objects protected by IP law are merely accidentally embodied in these manifestations. The work, the invention, the design, the distinctive sign, etc. exist strictly separated from their instantiations as immaterial ('intellectual'), abstract objects (in the following: abstract IP objects).4 Thus, three types of objects can be distinguished under German private law: the movable or immovable tangible thing (Section 90 of the Civil Code); other intangible yet physically measurable, material objects such as electric energy, a digital file or a computer program embodied on a data carrier (Section 453(1) alt. 2 of the Civil Code); and the immaterial, abstract IP object.5"-- Provided by publisher Intellectual property (IP) law operates with the ontological assumption that immaterial goods such as works, inventions, and designs exist, and that these abstract types can be owned like a piece of land. Alexander Peukert provides a comprehensive critique of this paradigm, showing that the abstract IP object is a speech-based construct, which first crystalised in the eighteenth century. He highlights the theoretical flaws of metaphysical object ontology and introduces John Searle's social ontology as a more plausible approach to the subject matter of IP. On this basis, he proposes an IP theory under which IP rights provide their holders with an exclusive privilege to use reproducible 'Master Artefacts.' Such a legal-realist IP theory, Peukert argues, is both descriptively and prescriptively superior to the prevailing paradigm of the abstract IP object. This work was originally published in German and was translated by Gill Mertens. Cover Half title Series Title Title Copyright Contents Acknowledgements 1 | Introduction 2 | Two Ontologies 3 | Two Abstractions 4 | Interim Summary: An Implausible Paradigm 5 | The Legal Explanatory Power of the Two Ontologies 6 | Normative Critique of the Abstract IP Object Summary in Theses Bibliography Index Cambridge Intellectual Property and Information Law - Series page