A Critique of the Ontology of Intellectual Property Law

Intellectual property law is based on a specific notion of reality. According to this understanding, there exist immaterial objects which are exclusively assigned to a rights holder.1 Unlike corporeal objects ('things'),2 these immaterial objects cannotbe touched, nor can their physical existence be measured as with intangible, yet still physical data or software.3 They are also not identical with specific exemplars of a copyrightable work (e.g. a book or a digital file), with products, mechanical or other technical processes, with product signs on packaging or advertising material, etc. Instead the objects protected by IP law are merely accidentally embodied in these manifestations. The work, the invention, the design, the distinctive sign, etc. existstrictly separated from their instantiations as immaterial ('intellectual'), abstract objects (in the following: abstract IP objects).4 Thus, three types of objects can be distinguished under German private law: the movable or immovable tangible thing (Section 90 of the Civil Code); other intangible yet physically measurable, material objects such as electric energy, a digital file or a computer program embodied on a data carrier (Section 453(1) alt. 2 of the Civil Code); and the immaterial, abstract IP object.5--