Smith, Henry E. --- "Toward an Economic Theory of Property in Information" [2011] ELECD 149; in Ayotte, Kenneth; Smith, E. Henry (eds), "Research Handbook on the Economics of Property Law" (Edward Elgar Publishing, 2011)

Book Title: Research Handbook on the Economics of Property Law

Editor(s): Ayotte, Kenneth; Smith, E. Henry

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847209795

Section: Chapter 5

Section Title: Toward an Economic Theory of Property in Information

Author(s): Smith, Henry E.

Number of pages: 21

Extract:

5 Toward an economic theory of property in
information
Henry E. Smith


I. INTRODUCTION

In what sense is intellectual property property? In what sense should it be? These ques-
tions would be a lot simpler to answer if we had a good definition of property, before we
try tackling the nature and purpose of property rights in information. In this Chapter, I
argue that part of the controversy over intellectual property stems from inadequacies in
the economic theory of property rights.
Most economists do not put much stock in labels, and `property' is no exception. New
Institutional Economics (NIE) is all about `property rights,' but the definitions of prop-
erty in NIE are surprisingly incongruent with traditional notions of property in the law.
In this, both law-and-economics and the NIE tend to strip away what is distinctive about
property. For many purposes this is just fine. For most economists, property rights are
stable expectations of an ability to take certain actions with respect to a resource and
to enjoy the return from these resource-centric actions.1 Thus, someone who has rights
to pick berries on Blackacre has property rights (as it happens, a right that would be
called a `profit' at common law). Someone who has fee simple title has property rights
to Blackacre of a more sweeping sort. This larger package could, as some would have it,
be regarded as a collection of specific rights: the right to collect berries, the right to plant
crops, the ...