A Critique of the Ontology of Intellectual Property Law

Abstract

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.

Economic Nationalism in Intellectual Property Policy and Law

“…31 One important regulatory tool to attract and establish certain high-tech industries of the time was the privilege awarded to people who introduced a new manufacture to the jurisdiction. 32 The first IP statutes were derivatives of these early modern privileges, both in terms of their legal-doctrinal structure 33 and regarding their purpose. Just like the privilege regime, the new patent and copyright laws implemented an inward-looking economic policy.…”