The idea of (intellectual) property in copyright law – an analysis of the concept under Polish law

Abstract

While explaining the idea of a copyright, many scholars refer to a property law model. The question is, however, whether such approach is really accurate. The idea of defining copyright law with reference to property law originated in the eighteenth century. The term ‘property’ was at that time very broadly interpreted. It covered a range of claims on assets, including a person, considered to be its own property. However, towards the end of the nineteenth century it became clear that there are structural differences between property and copyright. This led to a new category of rights, the ‘immaterial goods.’ This distinction was quite plausible and has remained such until today. Unlike property law, copyright is not a right in a thing but merely a ‘quasi right’ in a thing. The difference between both rights is also confirmed by an economic analysis which shows that the exclusivity of copyright law does not necessarily follow from its subject, since the limitation of an access to a work is not an effect of its nature. Thus there need not necessarily have to be a rivalry for the work, since it can as such be reproduced in an unlimited number. This, in turn, leads to a conclusion that an inconsiderate adoption of the property pattern in the field of copyright is unfounded and may bring about undesirable consequences.