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.