Intellectual Property Issues

• Author: By John Vernon, Christina Stephenson, and David Gurnick
• Pages: 145-158

145

I. BasIcs of Intellectual ProPerty

law In relatIon to BankruPtcy

a. what Is Intellectual ProPerty

People thinking about “property” might envision land and the wide

range of things that make up, enrich, and sometimes plague our physi-

cal world. William Blackstone wrote that property is “that sole and des-

potic dominion which one man claims and exercises over the external

things of the world, in total exclusion of the right of any other indi-

vidual in the universe.”1 Later thinking conceived the “bundle of rights”

notion of property. This refers to ownership of various rights, powers,

and privileges that may be exercised in relation to a thing:

Ownership comprises the right to possess, the right to use, the

right to manage, the right to the income of the thing, the right to

the capital, the right to security, the rights or incidents of trans-

missibility and absence of term, the prohibition of harmful use,

liability to execution, and the incident of residuarity: this makes

eleven leading incidents.2

The idea of a bundle of rights has become an accepted paradigm

applied in courts and academia, to understand what is property.3

1. William Blackstone, Commentaries on the Laws of England, Bk. 2, Ch. 1 (1765–69).

2. A.M. Honore, Ownership, in

OxfOrd Essays in JurisprudEncE

107 (A.G. Guest, ed., 1961)

(quoted in Burns v. PA Dept. of Correction, 544 F.3d 279, 287 (3d Cir. 2008)).

3. See Abraham Bell and Gideon Parchomovsky, A Theory of Property, 90

cOrnEll l.

rEv.

531, 546 (2005) (“today, the bundle of rights conception of property rules the aca-

demic eld.”); see also, e.g., Horne v. Dept. of Agriculture, __ U.S. __, 135 S.Ct. 2419, 2428

(2015) (referring to “bundle” of property rights); Stewart v. Abend, 495 U.S. 207, 220 (1990)

(noting author holds “a bundle of exclusive rights” in a copyrighted work).

Intellectual ProPerty Issues

By John Vernon, Christina Stephenson, and David Gurnick 6

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