To what extent can the so-called “intellectual property” right be considered a property right? In other words, can one speak of “property” in the legal sense when speaking of an intangible creation and its protection? After two centuries of debate, the question has received considerable attention. Bernard Vanbrabant, young legal expert at the University of Liège, wrote his doctoral thesis (1) on the topic. He raises the polysemy of the term “property” suggesting in particular a method of exclusive reservation of assets allowing for them to be marketed. In this regard, the line dividing tangible and intangible tends to blur. This is an original approach and a thorough definition of the nature of intellectual property that puts the notion in perspective with the Civil Code and initiates the resolution of quite a few controversies.

The concept of property is now extensive enough to include intangible property like products of the intellect. But is it realistic to reduce them to this single concept? Is it possible conceptually to lock down something that tends to be ubiquitous, like a piece of music, a painting or a software program? What are the limits of copyright, patents and registered trademarks? Above all, can the many specific unresolved questions be answered by applying to intellectual property rules that were conceived to govern real properties? The concept of intellectual property has fascinated philosophers, economists and legal experts for two centuries.

The detailed and meticulous thesis by Bernard Vanbrabant, who is a practising lawyer and has been an assistant at the department of the law of property and of evidence at the University of Liège for about 12 years, seeks to specify the legal nature of intellectual property and to define its property regime. More specifically, in over 1000 pages of questioning and analysis of case law, he examines the possible connections between intellectual property law and the Civil Code, written in 1804 to protect a the material goods of citizens, their property. “The Civil Code was mainly drafted to protect immovable property,” the author explains. “Movable property, and in particular products of the mind, were of little importance to the authors of the Civil Code.” However, to the extent that intellectual rights must necessarily obey a property regime, as with tangible, movable and immovable property, in many cases the articles of the Civil Code continue to offer a relevant legislative arsenal.

A broad field of investigation

If the encyclopaedic nature of the thesis is impressive, there is little evidence of philosophical or economic considerations. The angle is strictly legal. Nor does the author offer a study in comparative law. He only considers foreign legislation and practices outside Belgium where the reflections and solutions can be transposed into our own legislation. Despite these limitations, the field to be exploited was vast and still untouched, which explains the length of the thesis. The author could have reduced his field of investigation. For example, he could have focused on a more precise category of intellectual property right, like copyright or trademark or patents, or limited himself to studying contractual relationships. Nonetheless he decided to embrace the whole. “In Belgium, there has still been nothing published on the subject in general. France has already had its publication of studies on the relationship between intellectual property and civil law. Some conjure up very precise topics. One was written on the question of co-ownership, another on usufruct, yet another on the issue of licences, and so on. Here, there have clearly been publications on the issues connected with intellectual property. However, there was still no fundamental research on its relationship to civil law. I therefore proposed to tackle all the questions that this relationship raised through broad enough research in which practitioners would be able to find real answers in case of litigation.” Beyond academia, research in fact targets mainly legal practitioners. Many questions are asked and analysed  using an efficient and systematic methodology. “Of course, I don't answer all the questions. For example, I'd written an entire chapter on the issue of security on intellectual property, useful when an innovative company would like to obtain credit. In the same way one can encumber a house with a mortgage, or give a watch as pawn, is it possible to pledge intellectual property? But a recent evolution in Belgian law, on the issue of movable property security, forced me to put the chapter aside before defending my thesis.”

(1) La propriété intellectuelle : nature juridique et régime patrimonial (Intellectual property: legal nature and patrimonial regime), 2013.