A Critique of the Ontology of Intellectual Property Law

This book provides a comprehensive critique of the idea that 'intellectual property' exists as an object that can be owned.

Alexander Peukert (Author), Gill Mertens (Translated by)

9781108498326, Cambridge University Press

Hardback, published 20 May 2021

250 pages
15 x 23 x 1.5 cm, 0.46 kg

'This fascinating book is a 'must' for every scholar and practitioner interested in exploring the true character and nature of intellectual property rights. The author challenges traditional IP notions and proposes quite intriguing alternative approaches to the concept of the IP object. Whether or not one believes that IP resembles 'real property', this book will give the reader plenty of food for thought. Read to get intellectually stimulated!' Ole-Andreas Rognstad, University of Oslo

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.

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.

Subject Areas: Property law [LNS], Intellectual property law [LNR], Jurisprudence & philosophy of law [LAB]