ABSTRACT

The contradictions at the heart of the concept of intellectual property (IP)—of property which is

intangible, private ownership which requires radical state intervention, and markets which are

based on monopolies-never fail to fascinate. In this chapter1 we will argue that their further

exploration can still yield interesting insights if it is recognised that the basic contradiction really

inheres in the concept of ‘private’ property generally. This basic contradiction is that between the

commonplace, naturalistic understanding of private property as an owner’s inherent exclusive

rights over a thing, and the justification of property rights as social institutions determining the

relative rights of persons towards things. The former does not stand up to close scrutiny; the latter

helpfully points to the necessity of publicly designing economic institutions so as to produce welfare

optimising outcomes. The general idea of an intellectual property right (IPR) is, we will claim, one

of the most blatant examples of a property right which, because it is commonly based on the

naturalistic understanding, does not produce welfare enhancing outcomes; indeed it constantly

needs to be hedged about with limits, exceptions and sui generis variants to be workable at all.