| This thesis offers an investigation of intellectual property. The questions include: what is intellectual property and what should intellectual property law be?; The thesis begins with an account of interviews of individuals, who believed that they produced intellectual property. The analysis of their comments generated categories which provided the basis for a description of intellectual property as revealed in the products and activities of these individuals who are referred to as the ‘author/inventor’. The analysis of the products and activities of the author/inventor, as well as of the author/inventor, led to the development of a concept of intellectual property. The analysis of the products led to a description of the triptych of objects, tokens, and self produced by the author/inventor. The sense that these products were also property prompted an analysis of property and a description of property as produced through ownership and a definition of property as things owned, as rights and as attributes of the owning self. In turn, this analysis led to an appreciation of intellectual property as distinguishable from other forms of property by the claims of the author/inventor and to a realization of the importance of ideas about the self, both as product and producer of intellectual property and the importance of the activity itself in the production of intellectual property. This led to the analysis of the activity and to a description of the qualities of creative activity. Drawing on the works of Hannah Arendt and Johann Huizinga, the activities of the author/inventor were characterized as work or action imbued with the spirit of play. Seen as unfolding dialectically over time, intellectual property appeared, practically, as the products and activities of creative individuals and, conceptually, as a synthesis of property and play of the author/inventor.; The thesis concludes with a prescription for an intellectual property strategy informed by the concept of intellectual property as the property and play of the author/inventor and by a concept of contemporary law drawn from the works of H. L. A. Hart and Neil MacCormick. The strategy is also informed by ideals reflected in the three principles of intellectual property law: reasoned freedom of information, governed progress, and justice as fair play. The strategy thus reflects both the conceptual analysis of intellectual property and the legal system and proposes a framework for the reform of the existing law. The introduction of new types of patents, the radical revision of copyright law, and the increased scrutiny of trademarks are examples of the nature of reforms which the analysis suggests and which, if enacted, would allow intellectual property to develop as it should. The strategy also suggests the need for a new attitude or direction for the law. Intellectual property cannot be planned. The law can guide, but cannot determine the outcome of creative activities. Moreover, the promise of intellectual property cannot be measured in economic terms and can best be appreciated, to use the metaphor of the game, in play. |
