Toward a Unified Theory of Intellectual Property: The Differentiating Capacity (and Function) as the Thread That Unites All its Components

• DOI: http://doi.org/10.1111/j.1747-1796.2012.00441.x
• Published date: 01 July 2012
• Author: Nuno Pires de Carvalho
• Date: 01 July 2012

The Journal of World Intellectual Property (2012) Vol. 15, no. 4, pp. 251–279

doi: 10.1111/j.1747-1796.2012.00441.x

Toward a Unified Theory of Intellectual Property:

The Differentiating Capacity (and Function) as the

Thread That Unites All its Components

Nuno Pires de Carvalho*

World Intellectual Property Organization (WIPO), Geneva

The absence of a reliable and coherent theory of intellectual property has given rise to conceptual misunder-

standings and, in particular,has led policy makers to make poor choices as regards the formulation of decisions

on its protection and enforcement. This article proposes a new approach to the definition of intellectual prop-

erty. Basically, it suggests that, contrary to the general view, there is a thread that unites all the components of

intellectual property. That thread consists of the differentiating capacity and function of those components, in

addition to their intangible nature and susceptibility of use in activities of an economic nature. It is therefore

purported that intellectual property is about differentiation, whether it deals with invention and creation or

not. Once it is accepted that intellectual property is not necessarily an incoherent bundleof rights in intangible

assets of many sorts,its intrinsically pro-competitive nature becomes a matter of course.The crucially important

notion that intellectual property is part of the social fabric of free and organized societies becomes also an

almost self-evident matter.

Keywords intellectual property; law and economics; political economy

What is intellectual property?

The search for an answer to this question has solicited different approaches, from listing the

components of intellectual property to associating it with ideas that are somehow connected with

creation and innovation.The problem of such approaches is thatthey fail to identify the characteristic

that is common to all intellectual property components, and therefore do not explain the coherence

that is inherent to them. Ultimately, the explanations that have been provided by scholars, courts

or lawmakers are either too narrow, and therefore fail to embrace important intellectual property

sub-branches, or too broad, and therefore include areas that are not within intellectual property.

Lists of intellectual property components necessarily omit those areas not yet developed or that

are not deemed so by national statutes. The association of intellectual property with creation and

innovation neglects those fields that have nothing to do with creative or inventive efforts—and there

are many in intellectual property, namely those that are related to reputation built on continued and

honest activities in commerce and manufacture. The linkage of intellectual property with ideas is, by

contrast, too broad because not all ideas are protected.

The absence of a reliableand coherent doctrine of intellectual property has given rise to concep-

tual misunderstandings. This might not be a problemif it remained strictly confined to the academic

world. The problem, however,is that a misguided notion of intellectual property leads policy makers

to make poor choices as regards the formulation of decisions on its protection and enforcement.

This article proposes a new approach to the definition of intellectual property. Basically, it

suggests that, contrary to the general view, there is a thread that unites all the components of

intellectual property. That thread consists of the differentiating capacity and function of those

*All views and opinions are the author’s exclusively and do not necessarily coincide with the views of WIPO Member

States.

C2012 Blackwell PublishingLtd 251

Nuno Pires de Carvalho Towarda Unified Theory of Intellectual Property

components,in addition to their intangible nature and susceptibility of use in activities of an economic

nature. It is therefore purported that intellectual property is about differentiation, whether it deals

with invention and creation or not.

Because the misguided notions of intellectual property havebeen entrenched across the intellec-

tual property community—from academics to government officials, from courts to policy makers,

from law practitioners to nongovernmental entities—what this article proposes is a true paradigm

shift. Therefore,as it happens with every paradigm shift, its acceptance requires a change in mindsets,

which means that it will not take place immediately and not without controversy.

However, once it is accepted that intellectual property is not necessarilyan incoherent bundle of

rights in intangible assets of many sorts, its intrinsicallypro-competitive nature becomes a matter of

course. The crucially important notion that intellectual property is part of the social fabric of free

and organized societies becomes also an almost self-evident matter.

This article opens with its core argument: intellectual property is about differentiation. In the

section “The differentiation function as the core function of all branches of intellectual property”,it

briefly describes the three dominant approaches to defining intellectual property and identifies their

shortcomings. In that same section the article also explains how the differentiation element operates

as the thread that unites all components under intellectual property. It also shows that,on economic,

rather than on cultural grounds, intellectual property is, and has ever been, part of the social fabric

of free and organized societies. In the next section the article deals with the valueof a unified theory

of intellectual property, which goes beyond a merely academic proposition. The conclusion is that

the time has come to have a freshly consistent look at intellectual property from a more structured

and coherent perspective.

The Differentiation Function as the Core Function of all Branches of Intellectual Property

(1) Traditional definitions of intellectual property

Admittedly, to define intellectual property is not an easy task. The problem stems from the

fact that intellectual property is the umbrella for a large number of legal sub-branches that seem to

serve different, if not sometimes conflicting, functions, obey varying rationales and are bound by

heterogeneous public policies. As a consequence, definitions of intellectual property have differed.

In this context, three major tendencies can be detected. Some attempts to provide for a definition of

intellectual property have relied on listing the various subject matters of protection. Another very

common approach has been to associate the subject matterof intellectual property with the products

of the human mind, or intellectual activity. A third widely spread practice is to reduce intellectual

property to legal measures that promote and protect invention and creation. Let us verybriefly look

at these three trends and their shortcomings.

(i) Defining intellectual property by reciting its components

Defining intellectual property by listing its components is an easy way of solving the problem

of finding a common denominator—or, more precisely, of avoiding to have to find one. In a certain

way, to recite the components of an object operates by way of example. One introductory scholarly

study on intellectual property says so very eloquently:

A book presenting the basics of intellectual property faces two difficulties. First, intel-

lectual property traditionally includes the three legal areas of patents, trademarks, and

copyrights. However, except for tradition and the fact that the three subjects are com-

monly taught together in one survey course,one might question why a single book should

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C2012 Blackwell PublishingLtd

The Journal of World IntellectualProperty (2012) Vol. 15, no. 4