Intangible Property : A Chose By Any Other Name?
Research output: Conference Papers (RGC: 31A, 31B, 32, 33) › 31A_Invited conference paper (refereed items) › peer-review
Related Research Unit(s)
|Number of pages||27|
|Publication status||Published - 19 Jul 2018|
|Title||Obligations IX Conference: Form and Substance in the Law of Obligations Conference|
|Location||University of Melbourne|
|Period||17 - 20 July 2018|
Despite Juliet’s appeal to substance over form in the famous balcony scene of Shakespeare’s Romeo and Juliet, she and we, the readers, learn that names matter and that the consequences can be tragic. Today, in the legal context, we can see that the label “chose in action”, or “thing in action” to avoid the use of French, though venerable, is rapidly becoming unfashionable. Most modern scholars prefer the label “intangible property” for a variety of reasons – including the incongruity of the former in respect of many modern forms of intangible property such as carbon credits or export quotas, the plain English movement’s push away from the use of foreign language, the descriptive appeal of a thing being “intangible” as opposed to the vaguely opaque technicality of its being “in action”. This paper makes a case for the retention of the venerable label. First, it is suggested that the widely held views on the limitations of the label of chose in action are unfounded. As a category of property, the chose in action is as much capable of encompassing contractual obligations, its original core, as it is intellectual property rights and even regulatory licences. Secondly, whilst the label may be less accessible to laypersons, it embodies an important reminder to lawmakers, whether legislators or judges, of the importance of demarcating the boundaries of any new forms of intangible property they wish to create by law. By contrast, the newer label of intangible property does not do so. Intangibility describes a negative attribute, telling us what characteristic this category of property does not possess. By focusing attention on the non-existence of an attribute, it lacks the older label’s admonitory value, one that can cause great confusion as new forms of property are recognised with no clear guidance as to how they are actually proprietary.
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