THE INTERRELATION BETWEEN INTELLECTUAL PROPERTY LICENSES AND THE DOCTRINE OF NUMERUS CLAUSUS. A COMPARATIVE LEGAL AND ECONOMIC ANALYSIS

Abstract

In the western legal tradition, the principle of numerus clausus is regarded as a fundamental hinge of the classic Law
of Property: while contract law allows individuals to freely shape legally enforceable promises according to their needs,
property law is confined in a closed set of forms, and no “property” rights may be created other than those explicitly
provided by the Legislator. Conversely, when looking at intellectual property the pattern we observe seems at first to be
different: the holder of a primary bundle of rights (Copyright, Patent, Trademark, etc.) is generally considered free to
tailor and transfer to third parties any combination of his economic faculties, licensing secondary rights that stand erga
omnes and circulate autonomously in market transactions. The aim of this paper is to cast some light on this
apparently ambivalent role of the numerus clausus principle. The efficiency rationales of the doctrine are discussed, and
then specifically applied to the field of intellectual property in a comparative perspective, in order to possibly identify
common operational rules demonstrating the constant feature of numerus clausus as a regulatory principle meant to
minimize the informational problems that an uncontrolled fragmentation of property rights over an asset might produce.