Party Autonomy in International Property Law - Peace Palace Library

A. General Aspects of Party Autonomy
Although it has been argued that the numerus clausus principle is economically
efficient, 5 this is neither here nor there. Any legal system which
allowed the creation of idiosyncratic rights which imposed duties on third
parties which they could not ascertain or predict would offend basic principles
of morality.
All modern legal systems have however moved beyond Roman law and
recognise classes of rights which are neither in rem nor in personam in the
sense the Romans would have recognised. In modern day usage we confer
the label “property rights” upon classes of rights which would not have
been recognised as in rem by our Roman forbears. This has important
consequences for the scope of the numerus clausus principle.
4.2. Intellectual property: a brief digression
Intellectual property rights are not in rem in the Roman sense because
they do not relate to any physical thing. Indeed, they have no subject matter
independent of the right itself which is capable of being transferred. If
I have a right in rem in relation to a computer, if that computer is stolen
and then given to a third party, I can follow my right in relation to the
thing into the hands of the donee. With an intellectual property right,
by contrast, there is no separate thing to follow. If a third party publishes
my book in breach of copyright, or sells copies of my patented invention,
or sells a soft drink using the name my rival drink has employed as its
trademark, a wrong is committed. However, no thing has been transferred
to or interfered with by the wrongdoer. Although, perhaps astonishingly
to the outsider, the common law possesses no rei vindicatio in relation to
personal property, it can be readily seen that no claim of the form “that
is mine give it back” can be asserted in relation to intellectual property
rights. Intellectual property rights are exigible against the rest of the world
but have no independent subject matter.
It is because of the fact that they are exigible against all others that we
cannot create any intellectual property right of any form of our choosing.
To constitute an intellectual property right a right must fall within one
of the definitions of such a right; if it does not no intellectual property
5
H. Smith. and T. Merrill, ‘Optimal Standardization in the Law of Property:
The Numerus Clausus Principle’, 110 (2000) Yale Law Journal, 1.
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Robert Stevens
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