Property and Immateriality in Civil Law and Common Law

Traditionally, civil law theory is based on a materialist approach to ownership, aimed at corporeal things or property, while the common law is more open to immateriality. Although some civil law scholars continue to consider that ownership, in the technical sense, applies only to corporeal property with a physical existence, Quebec civil law today appears to admit that incorporeal property can also be the object of ownership, alongside corporeal or material property. The objective of this article is to show that despite the classical opposition of the civil law and common law traditions with respect to the recognition of immaterial property, there are links between the two traditions in the way in which they conceive of property and its criteria, as well as a trend in both civil law and common law towards recognizing, in the field of ownership, a range of things other than material objects, through the consideration given to incorporeal property. Given the growing importance of everything that is immaterial, it seems reasonable to review the common ground between the common law and civil law in the field of incorporeal property, and to identify what is shared or separate in the rules that apply to incorporeal property. The thesis presented here it that the situation is not a plurality based on the two legal traditions, but rather a diversity based on types of property, and that certain common traits can be identified in the notion of incorporeal property and in the rules applicable to it in the two legal traditions. In both cases, these shared traits suggest a growing similarity between the common law and civil law with regard to the notions and legal rules governing corporeal property.