Bernard Vanbrabant reminds us : “It is from this perspective that the philosopher Pierre-Joseph Proudhon wrote that property is theft. Without being as controversial, it has to be admitted that property, including intellectual property, is deprivation or frustration of non-owners; but it is not their subjugation. The distinction is important from the point of view of legal technique: unlike so-called personal rights or rights of claim, property (material or intellectual) rights do not obligate a specific person. It prevents the use or exploitation of the property of the owner; this exclusivity relationship, a characteristic of ownership, applies to intellectual rights.”

However, once this exclusivity relationship is founded and established, it would be better, Bernard Vanbrabant stresses, to consider the intellectual property right itself, in other words the legal prerogative granted by law, as the “property” included in the owner's assets, susceptible to assessment, assignment (by contract) and conveyance (on the death of the holder or on the merger of companies). This vision of things makes it easier to deal with intellectual property as property.

These two dimensions of intellectual property rights, both as an exclusive prerogative and a possession, have real impacts, as the author illustrates using two examples.

He begins with the patrimonial nature that most prerogatives described as intellectual property rights have. “An artist dies and leaves his inheritance to his children. They are undivided. The heirs inherit not only the canvas but also the copyrights which they will be able to exploit. Normally, the heirs have to arrange things amongst themselves and agree unanimously on how to proceed. However, if they are no longer in agreement and cannot come to an arrangement on how to manage the property, each of them may exercise their right to division, which is a well-known prerogative recognised in the Civil Code. Can literary or artistic property be divided? The law on copyright does not provide an answer to this question. However, considering the legal nature of intellectual property rights, one could draw a distinction. On the one hand, some prerogatives, called moral, like that of divulging unpublished work or requiring the association of the creator's name for exploitation of the work, are not susceptible to division; notwithstanding the terms of a possible division, any of the heirs may object if there is a violation of one of these moral rights. However, this is an exceptional case that is encountered primarily in cases of copyright.” Most of the rights, including an author's exploitation rights, which drain revenues, are patrimonial in nature. “It is a priori possible to contemplate sharing these rights, which may be analysed as possessions.”

Another interesting example, which reveals the consequences of the exclusive nature of intellectual rights, is that of the extinctive prescription (limitation). In principle, when a right has not been exercised by its holder for a specified number of years, it lapses. This rule applies to rights to claim; nonetheless, it is generally accepted that property is not subject to the rule of limitation: we do not lose property if we do nothing. The typical application of extinctive prescription is that of the creditor who, if he doesn't come forward for ten years, loses his right to claim. This permits the debtor to be, following time determined by the law, released of his obligations and move out of his status of “subjugation”. Thus, since the property involves a relationship of exclusion and not a situation of subjugation, it is understandable why it escapes the mechanism of extinctive prescription. “Now, are intellectual property rights subject to limitation? Let us take the example of a painter's heir who realises that a company has been using the artist's works for 30 years, for example, to sell post cards. Intellectual property law has been breached but can this breach still be sanctioned, notwithstanding the passage of time? Building on the relationship between intellectual property right and (traditional) property rights, the heir could sustain the legal permanency of his prerogatives and, therefore, addresses the judge to order the company to stop the use (unless an agreement is reached, with the heir, on the conditions of this use). The company may not hide behind the rule of extinctive prescription because the heir holds a right to prohibit any person from using the object, not a right to request the performance of something.”