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Exclusive rights are generally divided into two categories: those that grant exclusive rights only on copying/reproduction of the item or act protected (e.g. copyright) and those that grant a right to prevent others from doing something. The difference between these is that a copyright would prevent someone from copying the design of something, but could not stop them from making that design if they had no knowledge of the original held by the copyright holder. Patents and trade marks on the other hand, can be used to prevent that second person from making the same design even if they had never heard of or seen the claimed "property". Those rights must be applied for or registered and are more expensive to enforce.
There are also more specialized varieties of so-called sui generis exclusive rights, such as circuit design rights (called mask work rights in USA law, protected under the Integrated Circuit Topography Act in Canadian law, and in European Community Law by Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products), plant breeder rights , plant variety rights , industrial design rights, supplementary protection certificates for pharmaceutical products and database rights (in European law).
Exclusive rights may be analysed in terms of their subject matter, the actions they regulate in respect of the subject matter, the duration of particular rights, and the limitations on these rights. Exclusive rights policies are conventionally categorized according to subject matter: inventions, artistic expression, secrets, semiconductor designs, and so on.
Generally, the action regulated by exclusive rights is unauthorized reproduction. However, as indicated above, some rights go beyond this to grant a full suite of exclusive rights on a particular idea or product. Generally, it is true to say that exclusive rights grant the holder the ability to stop others doing something (I.e., a negative right.), but not necessarily a right to do it themselves (I.e., a positive right.). For example, the holder of a patent on a pharmaceutical product may be able to prevent others selling it, but (in most countries) cannot sell it themselves without a separate license from a regulatory authority.
Most exclusive rights are nothing more than the right to sue an infringer, which has the effect that people will approach the rightsholder for permission to perform the acts to which the rightsholder has exclusive right. The granting of this permission is termed licensing, and exclusive rights licenses stipulate the extent of the licensee's ability to perform the acts the rightsholder may control. Other kinds of licenses attempt to establish additional conditions beyond the acts the rightsholder may control, and these licenses are governed by general contract principles. In many jurisdictions the law places limits on what restrictions the licensor (the person granting the licence) can impose. In the European Union, for example, competition law has a strong influence on how licences are granted by large companies.
Copyright licenses grant permission to do something. They are not contracts, since contracts require mutual consent. A patent license is a declaration not to do some things, under certain conditions. Exclusive rights policies in certain countries provide for certain activities which do not require any license, such as reproduction of small amounts of texts, sometimes termed fair use. Many countries' legal systems afford compulsory licenses for particular activities, especially in the area of patent law.
Most exclusive rights are awarded by a government for a limited period of time. Economic theory typically suggests that a free market with no exclusive rights will lead to too little production of intellectual works relative to an efficient outcome. Thus by increasing rewards for authors, inventors and other producers of intellectual works, overall efficiency might be improved. On the other hand, "intellectual property" law could in some circumstances lead to increased transaction costs that outweigh these gains (see Coase's Penguin). Another consideration is that restricting the free reuse of information and ideas will also have costs, where the use of the best available technique for a given task or the creation of a new derived work is prevented.
The term intellectual property is seen as problematic by some because the rights conferred by exclusive rights laws are in some ways more limited than the legal rights associated with property interests in physical goods ( chattel) or land ( real property). The presence of the word property in the term can be seen as favoring the position of proponents of the expansion of exclusive rights, who may thereby more readily draw on the rhetoric of property itself to remove the many natural and legal restrictions on exclusive rights which would be inappropriate if applied to physical goods. For instance, most nations grant copyrights for only limited terms. Additionally, the term is sometimes misunderstood to imply ownership of the copies themselves, or even the information contained in those copies. This would severely differ from physical property laws, which rarely restrict the sale or modification of physical copies of a work (something which many copyright laws do restrict).
A common argument against the term intellectual property is that information is fundamentally different from physical property in that a "stolen" idea or copy does not affect the original possession (see the tragedy of the commons). Another, more specific objection to the term, held by Richard Stallman, is that the term is confusing . Stallman argues that the term implies a non-existent similarity between copyrights, patents, trademarks, and other forms of exclusive rights which makes clear thinking and discussion about various forms difficult. Furthermore, most legal systems, including that of the United States, hold that exclusive rights are a government grant, rather than a fundamental right held by citizens.
Though it is convenient for direct incentive beneficiaries to regard exclusive rights as akin to " property", items covered by exclusive rights are, by definition, not physical objects "ownable" in the traditional sense.
Opponents of the term also point out that the law itself treats these rights differently than those involving physical property. To give three examples from US law, copyright infringement is not punishable by laws against theft or trespass, but rather by an entirely different set of laws with different penalities. Patent infringement is not a criminal offense although it may subject the infringer to civil liability. Willfully possessing stolen physical goods is a criminal offense while mere possessing of goods which infringe on copyright is not. Furthermore, in the United States physical property laws are generally part of state law, while copyright law is federal.
Others would argue that the law is simply recognising the reality of a situation. In some jurisdictions a lease of land (e.g. a flat or apartment) is regarded as intangible property in the same way that copyright is. In these cases too the law accepts that the property cannot be stolen - if someone moves into the flat and prevents you from living there they are not regarded as 'thieves of the lease' but as ' squatters' and the law provides different remedies. Identity theft is another example of the adaptation of physical property laws to intangible items, though that term itself is seen as problematic by some.
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