Roman law, civil law, comparative legal history, incor-poreal goods, intangible goods, intellectual property, software, li-cense agreements, franchises, good will agreements, trade, secrets
This article offers the legal profession a method to effectuate on behalf of authors, designers, or inventors who are residents of Louisiana (or for Louisiana transactions) the rights recognized by federal law on intellectual property (IP) and unfair competition by activating the civil law on incorporeal things. Additionally, it offers a way to enhance the civil law practitioners’ stock of solutions with the regular notions of property, contracts, and torts in IP and unfair competition law for fascinating results. Also, it enables civil law academia to teach IP and unfair competition law through regular courses such as property, contracts, and torts and cease to label them as special or sui generis fields of the law.
With the adoption of the legal fiction of the juridical thing, the legal notions and solutions of the Louisiana Civil Code become readily available for the practitioner who may handle cases in a more competitive way. If one removes the words “right of” from the Louisiana Civil Code article 461 by replacing it with “things consisting,” this subtle but significant change would make the point: “Incorporeals are things that have no body, but are comprehended by the understanding, such as the rights of inheritance, servitudes, obligations, and things consisting of intellectual property.”
Very importantly, the juridical thing creates wealth in the individuals and activates private economy for an economic development that grows bottom up. The individual becomes aware of possessing a tradeable asset in a cooking recipe, a sales procedure, a builder’s drawing, or a tailor’s design. It creates wealth like other legal figures did in history; for example, “property” allowed individuals to own land simultaneously with the king; “mortgage” gave many the ability to own property where cash flow was lacking; and “wills” allowed the continuation (and distribution) of property beyond the life of the property owner. Also, “consensual contracts” permitted the outburst of massive business transactions in Rome and “security interests” made possible the overwhelming trade that arose from the recently discovered Americas.
Last but not least, by intelligently understanding the correlation between common law and civil law notions relating to IP, we secure the success of international treaties and prevent misunderstandings that lead to frustration and conflicts among nations, many of whom have so often felt unfairly treated.
Ricardo Bethencourt and Aniceto Masferrer,
Developing the Civil Law of Incorporeal Things,
12 J. Civ. L. Stud.
Available at: https://digitalcommons.law.lsu.edu/jcls/vol12/iss1/4