‘Intellectual property’ (geistiges Eigentum, propriété intellectuelle) is an enigmatic term. It basically expresses the notion that there is an exclusive right to an incorporeal good (eg a musical composition, a technical invention or a sign). The element ‘intellectual’ serves to distinguish this type of rights from rights in corporeal goods (res corporales). At a minimum the German and French understanding of Eigentum and propriété indicates that there is an exclusive right with effect as against any other person. This individual ‘intellectual property right’ should be distinguished from the totality of the regulations that comprise the field of ‘intellectual property law’. The current prevailing view is that the latter comprises copyright in works of literature and art, related rights to copyright, and the field of industrial property law including patent, design (industrial design law) and trade mark law. The meaning of the term ‘intellectual property’ as such is largely undefined. An analysis based on an historical comparison of laws reveals different and changing interpretations.
2. Historical background and the nation state phase
Intellectual property is a concept of the modern age, with neither antiquity nor the Middle Ages recognizing exclusive rights to incorporeal goods. It was in the 15th century, as a reaction to technological progress, in particular the printing press, that privileges were granted as an exclusive right to produce certain goods or to reprint texts. These selective monopoly rights were an instrument of the exercise of power by the sovereign, who was thereby able to pursue commercial and political objectives such as the censorship of undesirable literature.
It was not until natural law and the law of reason of the 16th and 17th centuries that private ownership was separated from the royal sovereign and re-established through the religion-based concept that assets should belong to the individual who made them usable or created them as the fruit of his own labour (John Locke). This theory originally applied to real estate and movables but was extended in the 18th century to works of literature and art as well as to inventions (Johann Gottlieb Fichte, Johann Stefan Pütter, Immanuel Kant). Locke’s theory proved particularly applicable to these latter goods since intellectual products seem to derive entirely from the personality of the creator. In the same way that each person was allowed to decide on his or her own thoughts and acts, creations ought also to be acknowledged as ‘intellectual property’ (in this vein, also the idealistic personality theory of Carl Gareis, André Morillot). Typical of this point of view is the oft-cited comment by the Deputy Le Chapelier on the first French Copyright Act of 1791: ‘La plus sacrée, la plus légitime, la plus inattaquable … la plus personnelle de toutes les propriétés, est l’ouvrage, fruit de la pensée d'un écrivain’, although he did add that ‘c’est une propriété d’un genre tout différent des autres propriétés’. The ethical and legal policy postulate contained in the term ‘intellectual property’ made a major contribution to the establishment of the entire field of law: ‘The idea of intellectual property was the rallying cry in the struggle to protect intellectual work’ (Eugen Ulmer). At the same time, enterprises such as publishing houses and producers of phonograms were repeatedly able to instrumentalize the arguments based on the self-determination of the author for their own purposes in order to acquire exclusive rights to protect themselves against competition.
However, as a legal concept, the term ‘intellectual property’ failed to establish itself during the nation state period from the 18th to the mid-20th century. It is only occasionally to be found in constitutions as a power of the state (such as in the constitutions of the German Empire of 1871 and of Spain of 1978), and in private law, eg in the first Prussian Copyright Act of 1837 (Eigentum des literarischen und artistischen Werkes) or in Spanish law where copyright and related rights, with the exception of the sui generis right of database producers, are referred to as propiedad intelectual, a term dating back to the terminology of a royal decree of 1764 (see Arts 428 ff Código civil).
In a comparative perspective, however, a more differentiated approach prevailed. This is the case first of all for British law, where the 1710 Statute of Anne was the first modern law to allow authors and their successors in title the exclusive right to print their books for a limited period of time. This codification also took place within the historical context of the replacement of the system of feudal privileges by parliamentary statutes. According to the decision of the House of Lords in Donaldson v Beckett in 1774 (2 Bro.P.C. 129), the Statute of Anne did not confirm a perpetual right for the author granted by common law but instead constituted the positive creation of limited ‘incorporeal rights’ that could only be called ‘property’ in a metaphorical sense. Moreover, the Act was intended to serve as an ‘encouragement of learning’. Like the Constitution of the United States, it went beyond a strictly individualistic approach (see Art I, Sec 8, Cl 8 US Constitution: ‘The Congress shall have power … to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’).
‘Intellectual property’ was no more successful in entering the legal language on the continent of Europe than it was in the Anglo-American system. Following the tradition of Roman law, the concepts of ownership in the French Code civil (Art 544, 516) and the German Bürgerliches Gesetzbuch (BGB) (§§ 903, 90) only relate to corporeal objects (res corporales/biens/Sachen). Calls for the recognition of unwritten intellectual property rights beyond the codified special acts were dismissed both by legal theory (Friedrich Carl von Savigny) and the courts. Despite the broad definition of Eigentum in the Allgemeines Bürgerliches Gesetzbuch (§ 353 ABGB: ‘Anything that belongs to someone, all his corporeal and incorporeal things, are called his ownership’), this restrictive approach even prevailed in Austrian law. In parallel with the differentiation made in statutory law, theory was unable to develop a super-ordinate classification under the heading of ‘intellectual property’. On the contrary, the temporal and other limits on these exclusive rights led to an ongoing discussion as to whether these rights could be called propriété at all under French law.
A certain degree of consolidation was reached by the distinction between industrial property rights (gewerblicher Rechtsschutz/propriété industrielle) on the one hand and copyrights in works of literature and art and related rights (Urheberrecht/propriété littéraire et artistique) on the other. It is only for the latter that in Italian and Spanish legal language the terms proprietà intellettuale and propiedad intelectual, respectively, are used. This terminology reflects the fact that these rights come into existence without any formal requirements on the basis of the act of creating the work or the performance and thus correspond with the idea of ‘intellectual property’ in a particular manner. Finally, the term was introduced as a heading—but not as an element of specific provisions—in the French Code de la propriété intellectuelle 1992. Nevertheless, this codification still distinguishes between copyright and industrial property rights.
The discrepancy between the political force of the idea of intellectual property and the very limited relevance of the expression in legal terminology in Europe is probably due to a number of factors. Since the private law concept of ownership in the Roman law tradition was limited to goods that could be touched (res corporales, Inst. 2, 12–13), it was necessary to find a separate basis for exclusive rights in incorporeal goods. The argument of a natural law classification no longer being sufficient in the modern constitutional state, there was consequently a need for special legislation that triggered a correspondingly fragmented theory and terminology. Where super-ordinate terms were established—as Immaterialgüterrecht in German (Josef Kohler)—these tended to be of a more doctrinal, descriptive nature.
3. The supra-national phase since the 20th century
The outstanding importance that the term ‘intellectual property’ enjoys today is therefore not based on its general recognition within the European legal systems. It is rather a result of a top-down development from international law that has taken place over the last few years. The early international conventions still separately addressed the protection of ‘industrial property’ (Paris Convention 1883) and the protection of authors’ rights to their works of literature and art (Berne Convention 1886). The two fields were merged at an institutional level in 1967 when the International Bureaux administering the conventions was transferred to the World Intellectual Property Organization—WIPO (Organisation Mondiale Propriété Intellectuelle—OMPI). According to the Convention establishing WIPO, the purpose of this specialized agency of the United Nations is to promote intellectual property protection around the world. The term ‘intellectual property’ was defined comprehensively to determine the fields of activity of the new organization. Alongside the classical areas, it also includes other ‘rights’ relating to ‘scientific discoveries ..., protection against unfair competition, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.’
This organizational decision contributed to the establishment of the term ‘intellectual property’ in international law. The term finally prevailed across the board in 1994 in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights—TRIPS (Aspects des droits de propriété intellectuelle qui touchent au commerce), now ratified by over 150 countries. Pursuant to Art 1(2) TRIPS, it covers ‘all categories of intellectual property’ that are the subject of the Agreement, hence copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout-designs (topographies) of integrated circuits, and the protection of undisclosed information.
On the basis of this definition, the concept of intellectual property made its way into the European and, from there, the national legal systems. Article 36 TFEU/30 EC still speaks of ‘industrial and commercial property’. According to the ECJ, this term also includes the financial aspects of copyright (ECJ Joined Cases C-55/80 and 57/80 – GEMA  ECR 147) and the protection of geographical indications (ECJ Case C-3/91 – Exportur  ECR I-5529). The first mention of the term in primary law is to be found in the 1997 Treaty of Amsterdam, specifically, and not accidentally, in the context of the Common Commercial Policy (Art 207 TFEU/133(5) EC).
In the extensive secondary law, too, the term initially enjoyed only marginal significance. In order to ensure the operation of the internal market, 12 directives, two recommendations and a number of regulations have been enacted since the end of the 1980s, creating in particular Union-wide uniform rights, namely the Community trade mark (Reg 40/94), Community plant variety rights (Reg 2100/94) and the Community design (Reg 6/2002). With these measures, the European legislature for a considerable time pursued a sectoral approach; the term intellectual property was only used in the title of one directive (Dir 2006/115 ‘on rental right and lending right and on certain rights related to copyright in the field of intellectual property’) and in various recitals.
4. Intellectual property as a term of European law
It was only at the beginning of the 21st century that ‘intellectual property’ was used as a statutory term in European law. This concerned first of all fundamental rights. In the same way as the French and German constitutions, Art 1 of Protocol No 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms guarantees ‘possessions’ without any separate mention of intellectual property rights. However, the latter are covered by such general fundamental rights to property if there is a sufficient basis for the respective interest in national law, and the party concerned has already acquired it (ECJ Case C-200/96 – Metronome Musik  ECR I-1953; ECtHR No 73049/01 – Anheuser-Busch). The Charter of Fundamental Rights of the European Union of 18 December 2000 abandoned this unitary concept. While Art 17(1) guarantees ‘lawfully acquired possessions’, para 2 lays down that ‘Intellectual property shall be protected’. The Praesidium of the Convention explains the special emphasis on this ‘aspect of the right of property’ by referring to its growing importance and Community secondary legislation on the matter. Intellectual property, according to the Praesidium, covers not only literary and artistic property but also patent and trademark rights and related rights. The guarantees laid down in Art 17(1) of the Charter are to apply as appropriate to intellectual property.
In secondary Union law, the change of paradigm from the sectoral to the horizontal approach took place with the Enforcement Directive 2004/48. Citing Art 41 TRIPS, this legislation concerns the measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights including industrial property rights. Pursuant to Art 2(1), the directive applies to ‘any infringement of intellectual property rights as provided for by Community law and/or by the national law of the Member State concerned’. The determination of the scope of application of the directive requires the examination of whether a legal position originating from Union law or a Member State’s law can be subsumed under the term ‘intellectual property’. In the light of the uncertainty on this point, the European Commission felt obliged to issue a ‘statement’ according to which ‘at least the following intellectual property rights are covered by the scope of the Directive: copyright, rights related to copyright, sui generis right of a database maker, rights of the creator of the topographies of a semiconductor product, trademark rights, design rights, patent rights, including rights derived from supplementary protection certificates, geographical indications, utility model rights, plant variety rights, trade names, in so far as these are protected as exclusive property rights in the national law concerned’.
The reference to ‘exclusive property rights’ is the key to developing general criteria for ‘intellectual property rights’. As recital 13 Dir 2004/48 indicates, such rights must be distinguished from prohibitions of acts involving unfair competition, which the Rome II Regulation (Reg 864/2007) qualifies as non-contractual obligations based on tort or delict. Unlike this protection of individual interests, intellectual property rights are primary rights with a negative and positive aspect. Their infringement triggers secondary remedies as provided for in the Enforcement Directive 2004/48. They have a statutorily defined effect against everyone within a specific territory. As such, they exist independently of an infringement, and their holder can transfer them, subject to statutory restrictions.
In summary, the following trends can be identified: a differentiated regulation and theory of copyright and industrial property rights has been replaced by a horizontal consideration under the heading of ‘intellectual property’. From a theoretical point of view, this encourages the formulation of general principles applicable to all respective rights. The illegitimacy ascribed to the demand of natural law that incorporeal goods be attributed to the person who created them as a fruit of her own labour has been remedied by emphasising the recognition of intellectual property in international law and in the Charter of Fundamental Rights. This corresponds to a rapid expansion of legal protection since the end of the 20th century both in breadth (new objects of protection such as databases, biotechnological inventions) and in depth (longer terms of protection, intensified enforcement).
Inter alia, these consequences have given rise to a criticism of the concept of ‘intellectual property’ (Manfred Rehbinder, Cyrill P Rigamonti). It is argued that its intuitive and persuasive power is being instrumentalized to achieve particular political objectives, namely a higher level of protection. A parallel assessment of all intellectual property rights also ignores the fact that there are considerable economic and other differences between the various subject matters of protection (for instance, between musical compositions and biotechnological inventions).
The dynamism and complexity of the term ‘intellectual property’ has a semantic dimension that has as yet to be given due consideration. In English, the term ‘property’ also designates the object of the right, hence what is being protected. In accordance with this understanding, the Annex to the DCFR defines ‘property’ as ‘anything which can be owned: it may be movable or immovable, corporeal or incorporeal’. Similarly, the TRIPS Agreement also qualifies exclusive rights (eg patents) and the subject matter of protection (eg topographies) as ‘intellectual property’. This term is then translated into German and French as Eigentum and propriété, which in turn stand for the most comprehensive legal position that a person can hold. This leads to an identification of the incorporeal good with the exclusive right, an identification that can have far-reaching consequences. Exclusivity becomes the point of reference of any talk about incorporeal goods. As a result, it is no longer the unrestricted use of knowledge in the exercise of the freedom of action (public domain/Gemeinfreiheit/domaine public), but rather exclusiveness that appears as the principle. As intellectual property is established as a central concept in European private law, account should also be taken of such indirect consequences.
Johann Gottlieb Fichte, ‘Beweis der Unrechtmäßigkeit des Büchernachdrucks—Ein Räsonnement und eine Parabel’ (1793/1987) 106 Archiv für Urheber- und Medienrecht 155; Josef Kohler, ‘Das Autorrecht, eine zivilistische Abhandlung’ (1880) 18 Iherings Jahrbücher 129, 329; Friedrich Carl von Savigny, ‘Notizen zum Gesetz über den Nachdruck’ in Elmar Wadle (ed), Friedrich Carl von Savignys Beitrag zum Urheberrecht (1992); Cyrill P Rigamonti, Geistiges Eigentum als Begriff und Theorie des Urheberrechts (2001); Elmar Wadle, Geistiges Eigentum. Bausteine zur Rechtsgeschichte (1996/2003); Ansgar Ohly, ‘Geistiges Eigentum?’ (2003) JZ 545; Michel Vivant, Propriété intellectuelle et mondialisation (2004); Laurent Pfister, ‘La propriété intellectuelle est-elle une propriété?’ (2005) 205 Revue Internationale Du Droit d’Auteur 117; David Vaver, Intellectual Property Rights, Critical Concepts in Law (2006).
Statute of Anne, 1710, 8 Anne chapter 19; United States Constitution, 17 September 1787, Senate Document 105-11; Report by the Deputy Le Chapelier, cited by AC Renouard, Traité des droits d’auteurs, dans la littérature, les sciences et les beaux arts (1838), 309, 326; Paris Convention for the Protection of Industrial Property, 20 March 1883, with later amendments; Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, with later amendments; Convention Establishing the World Intellectual Property Organization, 14 July 1967 as amended on 28 September 1979; Code de la propriété intellectuelle, Loi n°92-597, 1 July 1992, with amendments; Note from the Praesidium, Text of the explanations relating to the complete text of the Charter as set out in CHARTE 4487/00 CONVENT 50, 11 October 2000, CHARTE 4473/ 00, CONVENT 49; Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994; Council Regulation No 2100/94 of 27 July 1994 on Community plant variety rights, OJ L 227, 1 September 1994, 1; Charter of fundamental rights of the European Union, OJ L 364, 18 December 2000, 1; Council Regulation No 6/2002 of 12 December 2001 on Community designs, OJ L 3, 5 January 2002, 1; Directive 2004/48 of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, OJ L 157, 30 April 2004, 16; Statement by the Commission concerning Article 2 of Directive 2004/48 of the European Parliament and of the Council on the enforcement of intellectual property rights, OL L 94, 13 April 2005, 37; Directive 2006/115 of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version), OJ L 376, 27 December 2006, 28; Regulation No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), OJ L 199, 31 July 2007, 40; Council Regulation No 207/2009 of 26 February 2009 on the Community trade mark (codified version), OJ L 78, 24 March 2009, 1; Christian von Bar, Eric Clive and Hans Schulte-Nölke, Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR), Outline Edition (2009).