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1 - A Matter of Sense

What Intellectual Property Rights Protect

from Part I - Across Regimes

Published online by Cambridge University Press:  27 March 2020

Graeme W. Austin
Affiliation:
Victoria University of Wellington
Andrew F. Christie
Affiliation:
Melbourne Law School
Andrew T. Kenyon
Affiliation:
Melbourne Law School
Megan Richardson
Affiliation:
Melbourne Law School
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Summary

To the elemental question of what is the nature of intellectual property, the conventional answer is that it is ‘intangible’ and hence has no physical existence. This is because, it is said, there is a fundamental dichotomy between the immaterial subject matter that is protected by an IP right and its embodiment in some material object. This chapter revisits the elemental question and comes to the conclusion that the conventional view mis-states the position. In particular, while it is true that IP laws recognise something like the tangible/intangible duality, properly understood the rights granted by those laws do not attach to the immaterial subject matter; rather, they attach to the material object in which the subject matter is embodied. More specifically, while the class of things in respect of which IP protection may be granted includes intangibles, it also includes tangibles. Moreover, the things in that class are material – in that they are perceptible by a human sense.

Type
Chapter
Information
Across Intellectual Property
Essays in Honour of Sam Ricketson
, pp. 11 - 25
Publisher: Cambridge University Press
Print publication year: 2020

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