The Private Law Architecture of Intellectual Property

Abstract

Intellectual property occupies an uncertain and controversial place in private law. As a largely constructed legal order with purposes in view, private law appears to many as an inapt source of analogies at best and a distorting straitjacket at worst. From these perspectives, private law is associated with rigid formalism, excessive conceptualism, and over-propertization. I argue that the problem lies in the theory of private law implicit in discussions of intellectual property law and policy. Once we recognize that private law is both more structured – and for that very reason – more flexible than as generally portrayed, private law in general and property in particular can serve the functions of intellectual property in a tailored and adaptable way. Applying the tools of complexity economics, intellectual property law can be seen as providing the benefits of modularity – to areas of law and to entitlements – and as in the rest of private law it furnishes a second-order structure of interfaces between these modules. This paper makes explicit how the interfaces between property and contract, property and tort, and tort and contract, along with those involving restitution and equity, play out in the realm of intellectual property and serve to make intellectual property responsive to its purposes without burdening enforcers, transactors, and potential violators with unnecessary information and complexity costs. The paper ends with some thoughts on the implications of this architectural view of private law for the nature of intellectual property.