INTRODUCTION

How are conflicts around information property construed? This is the central question driving the BIP project. The present chapter focuses on ‘information property as an institution’, and complements the co-editors ‘contributions on intellectual property (IP)’ as regulation ‘(Van Overwalle), on IP’ as means to secure access and the public domain’ (Guibault), and ‘on limits of morality’ (Adcock and Beyleveld). This chapter is interested in how property structures conflicts between information property rights and other interests. In contrast to Geertrui Van Overwalle’s contribution, which focuses on the incentive function of IP as an institution of innovation policy, this chapter directs the focus to conflicts between IP and ‘other’ interests: Do national responses to the BIP questionnaire reveal that property still hierarchically reigns over all types of conflicts? How does the modern world exactly define the content of an IP entitlement? Where do boundaries come from? How is the ‘balance’ of IP and other interests achieved?

The drive for asking these questions is prompted by the strong resistance in the 1990s to regulating intellectual property. The conceptual backbone of this resistance is to understand IP just as ordinary property. 18th-century scholars transposed the notion of (public) sovereignty to the (private) property right, conceptualised as the most comprehensive right (civil law jurisdictions qualify this type of right as ‘absolute’). Thus, property became the backbone of market economies in the 19th century, driving trade and industrialisation. All entitlements, control rights and profits are absorbed and channelled to the owner. This rationale was transposed to IP. Its historic embeddedness in mercantilist policies which had assigned commercial privileges as public licences was substituted by the common phrase that ‘an IP right is not a privilege, but a right’, secured by international public law (Art. 27(2) TRIPS) and EU-law (Art. 17(2) EU CharterFR). This is the very foundation for conceiving of intellectual property rights as the basis for private ordering, which has implications for the vertical relationship to the state and the horizontal one between fellow citizens: once the requirements for the right to emerge are fulfilled, the state has no right to withhold the granting of the right (i.e. there is an ‘entitlement’ to the right).