Boldrin & Levine: Intellectual property law is not about your right to control your copy of your idea

“All of this brings us to what intellectual property law is really about – a reality that is simply obscured by analogies to other types of property. Intellectual property law is not about your right to control your copy of your idea – this is a right that we have just pointed out, does not need a great deal of protection. What intellectual property law is really about is about your right to control my copy of your idea. This is not a right ordinarily or automatically granted to the owners of other types of property. If I produce a cup of coffee, I have the right to choose whether or not to sell it to you or drink it myself. But my property right is not an automatic right both to sell you the cup of coffee and to tell you how to drink it.

It is important to distinguish between property rights and contractual agreements. You could sell me the delicious cup of coffee you just made, and have me sign a contract agreeing not to drink the coffee after 4 pm. But if I were to violate this agreement it would not be theft. As a matter of law, you could not send the police after me. You could sue me for breach of contract – and the courts might or might not decide the contract was valid. But there would be no question of theft or violation of property rights.

So what is the contractual arrangement in current intellectual property law? The most significant feature is the agreement not to sell copies of the idea in competition with the person who sold you the idea. Outside of the area of “intellectual property” such an agreement would be called anti-competitive, and a violation of the anti-trust law. If you reach an agreement with someone else not to compete with them, not only would the courts refuse to enforce such a contract, but you would be subject to substantial civil and criminal penalties. “Intellectual property” in other words, is not about property at all, it is about legal monopoly.”

  • Michele Boldrin and David K.Levine