A Critique of the Ontology of Intellectual Property Law Cambridge Intellectual Property and Information Law Series

Intellectual property (IP) law operates with the ontological assumption that immaterial goods such as works, inventions, and designs exist, and that these abstract types can be owned like a piece of land. Alexander Peukert provides a comprehensive critique of this paradigm, showing that the abstract IP object is a speech-based construct, which first crystalised in the eighteenth century. He highlights the theoretical flaws of metaphysical object ontology and introduces John Searle's social ontology as a more plausible approach to the subject matter of IP. On this basis, he proposes an IP theory under which IP rights provide their holders with an exclusive privilege to use reproducible 'Master Artefacts.' Such a legal-realist IP theory, Peukert argues, is both descriptively and prescriptively superior to the prevailing paradigm of the abstract IP object. This work was originally published in German and was translated by Gill Mertens.

1. Introduction; 2. Two ontologies; 3. Two abstractions; 4. Interim summary: an implausible paradigm; 5. The legal explanatory power of the two ontologies; 6. Normative critique of the abstract IP object.

Alexander Peukert is Professor of civil law, intellectual property, and competition law at Goethe University, Frankfurt am Main/Germany. He has published five books and more than seventy articles in these fields, with a focus on the theoretical foundations of intellectual property law.