The battle between intellectual commons and intellectual property

The battle between intellectual commons and intellectual property

By putting forward an essential distinction between intellectual property and intellectual commons, this article questions whether personality rights, considered as being part of intellectual commons, should be protected by intellectual property.

As a matter of fact, according to some authors, intellectual property should be differentiated from things that belong to the intellectual commons. By refusing a subjective system of knowledge, the intellectual commons try to ensure an objective regime of information without any influence, such as monopole rights.

Indeed, intellectual property is different from intellectual commons as far as, on the one hand intellectual property is considered as an individual reward, encouragement or economic incentives in creativity and innovation. On the other hand, intellectual commons are supposed to guarantee the human knowledge and cultural development.

As a consequence, opponents of personality rights claim that the recognition of such rights will considerably restrict cultural development and free speech. In this regard, the right to the protection of one’s image is seen as a means to exclude criticisms, while some of them could have been constructive and beneficial for the society. Indeed, “the increasing privatization of the celebrity … stifles cultural debate, deliberation and exchange of ideas”.


However, it is important to notice that personality rights can also protect someone’s reputation and honour.  Indeed, the reputation relates to the public opinion and the judgement that the society could make about someone. It is a matter of privacy. Thus, what could be more normal to provide celebrities with a right protecting someone’s integrity? Indeed, shouldn’t we respect the fundamental human right, which is the right to privacy? Yet, if we look more closely other aspects of personality rights, we could conclude the opposite. Indeed, giving personality rights to celebrities can be socially nefarious. As an example, the right of publicity is defined as: “the right of an individual to control the commercial exploitation of his or her name, likeness and persona, and the right to receive remuneration from that exploitation”.[2] This is the reason why we could wonder whether such a right for celebrities means giving them a powerful reign over our democratic communicative capacities.

In conclusion, because personality rights do not enable the development of meanings and value, such rights should not be granted. Consequently, publicity and image, which are personality attributes, belong to the category of intellectual commons and has to be completely distinguished from intellectual property.


[1] S. Sen, ‘Fluency of the Flesh: Perils of An Expanding Right of Publicity’ (1995) 59 Alb. L. Rev. 739,742

[2] R. Penfold, A. Batteson and J. Dickerson, ‘How to defend image rights’ (2005) 148 M.I.P. 19

2017-04-26T01:59:56+00:00October 27th, 2016|Non classé, We share|