A concept for protecting creators

It is not a matter here of extending the legitimacy of the concept of intellectual property. However, briefly putting it in context again may be helpful. The concept of intellectual property was created following the French Revolution. Before then, creators and inventors, or more often their contracting partners (publishers), could already benefit from a form of protection pursuant to the regime of privileges. Technically, the scope of these privileges was no different since they gave these people exclusive use of their creations. These privileges, however, were not involved in an equality of persons before the law since they were granted rather arbitrarily by the sovereign. “At the time of the French Revolution,” the lawyer recalls, “the system of privileges was rejected in all its forms. But it soon became clear that we couldn't move from a monopoly system, of protecting works against plundering and counterfeiting.” This system, which is an integral part of the Enlightenment, is not designed as a privilege granted by the Prince. We speak then of property. The evolution is great. “The concept of property allows legislators to emphasise that it is a matter of natural law. Humans have a natural right to protection of their creations. The legislator, in this view, merely determines this natural law and puts it together.”

For two centuries, this qualification has been constantly swinging like a pendulum between being challenged and then defended. It continues to do so today, in particular in the fierce debates inspired by the Internet and digital technologies. Those who would like to strengthen intellectual property rights, and thus protect creations strictly, rely on the notion of property which tends to legitimise this protection. Others speak more of “monopoly” or “privilege” (the term did not disappear with the Ancien Régime!). They use public interest, the greater good, to oppose the concern of protection of individual property of a work, claimed by a single person. They thus try to erode this right to favour access by everyone to the work. This ongoing discussion revolves philosophically around a delicate question: “Is the right protecting intellectual property legitimate, or rather the opposite, should it be reinterpreted to benefit the greater good?”

The researcher had to take this issue into account, but without providing a definitive answer. “Certainly, the legal nature of these intellectual rights has interested me and is largely examined in the first part of my thesis. But this conceptual elaboration should primarily allow me to confront these rights with the provisions of the Civil Code, when there are lacunae in the laws that relate to them directly.” Because despite the fact that the law and case law related to this matter is extensive and detailed, not every question receives a clear answer in intellectual property law... Parties who disagree often end up here, for example, in the case of co-ownership or when confronted with a problem of contract interpretation (see below). In the book, Bernard Vanbrabant demonstrates the interest still held by the Civil Code in resolving specific issues related to intellectual property. “Particularly for issues that relate to all goods in general: how intellectual rights may be transferred, to whom and under what conditions? How can they be acquired and for how long?”

Exclusivity and patrimoniality

The thesis is divided into three parts, the first being the longest. It is organised around three big questions. To what extent can the “exclusive” right in an intangible object, like a trademark or a work of art, be considered a property right? Can one speak of an intangible work as a good, as property, or should this term be reserved for the right which applies to this work, in other words, to the legal prerogative granted its author? And finally, is it a right in principle or by exception? The analysis of the nature of the intellectual right from these three perspectives was paramount. It was based on these conclusions that the author then decided which provisions of the Civil Code could be applied to intellectual property and with what adjustments.

First, is it possible to consider that the relationship between a creation and its maker (or the holder of the intellectual property right therein) is a property relationship? From a certain perspective, the answer is yes. “There is a common point between intellectual property rights and other forms of property rights,” the lawyer asserts. “It is the exclusive nature that is attached to it. In other words, they offer a possibility of excluding or prohibiting. The Civil Code describes ownership as the right to enjoy possessions absolutely. The truth is that this private property flows from the power to prohibit all third parties from using the appropriated good. The right to enjoy my car, for example, is above all the right to prevent anyone from taking my car and leaving with it.”