1.8.3 - Property of immaterial goods

Property of immaterial objects. Just as the creation of a new material good leads to the establishment of a new property right on that new material object, the creation of new subject matter that is protectable by an intellectual property right  results in an intellectual property right on that immaterial good, provided all the requirements for the grant of that IP right concerned are or will be fulfilled. The IP right concerned is an absolute right – meaning that it can be enforced against any third party – and it grants the owner of that right the right to exclude others from – simply put – any commercial use of the immaterial object concerned. 

Creation independent from third party behaviour. The creation of an IP right is independent from the behaviour of third parties. A property right on a bicycle is established by creating a bicycle and is not conditional on whether that bicycle may be stolen in the future. An intellectual property right is established in the same manner namely, by creating the immaterial object concerned and fulfilling any necessary other requirements. Both the creation and the existence of that right is not conditional on any possible future infringements by third parties. Therefore, the existence of an IP-right is not conditional on how other may behave in the future. 

Existing property right. From the moment the immaterial object is realised and the necessary requirements have been fulfilled, an IP-right exists and is a part of the right-owner’s equity, who may include it in his balance sheet as the inventory of all his assets. The value of that IP-right as an asset can be determined by the way the right-owner decides to exploit the right. He or she may transfer the IP-right, grant licenses to one or more third parties and may pledge the IP-right as collateral for financing purposes.

Abstracted from right-owner. In principle, from the moment of its creation, an IP-rights as an asset is abstracted from the original right-owner and leads a life of its own that is no longer affected by future circumstances that the original right-owner may encounter. Just as a property right to a bicycle is independent from what happens to the first owner thereof, but is only affected by what happens to the bike, an IP-right – generally – exists  irrespective of what happens to its first owner (except for copyright, given that the duration thereof may be impacted by the death of the original author).