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The relationship between privacy and intellectual property has resurfaced with a twist at the turn of the twenty-first century. If Victorian authors regarded intellectual property as private, contemporary proposals instead urge us to regard private information as property. In response to technological developments that have facilitated unprecedented invasions of individuals’ privacy, some scholars have advocated legally classifying private information as a form of property. These scholars insist that the best way to respond to privacy violations, particularly corporate commodification of personal data, is to invest people with property rights that would furnish control over their personal information. Insofar as intellectual property rights are currently understood to protect commodities, such proposals could dangerously redefine privacy rights and commodify the self. If, however, we instead conceptualize intellectual property as Victorian authors urged, a careful mapping of intellectual property onto privacy could offer robust protection. A relatively unheralded development of moral rights in nineteenth century intellectual property law, advanced by authors in courtrooms and literary works alike, insisted that the right to control written expression stemmed from its close connection to the self and treated copyright as a matter of personal, rather than solely economic interest. The earliest arguments for a legal right to privacy, at the end of the nineteenth century, capitalized on this understanding: to ground the individual’s right to control private information, the most influential of these proposals, Samuel Warren and Louis Brandeis’s “The Right to Privacy,” invoked copyright cases that defined literary works as articulations of their creators’ personalities and held that the right to control such works inhered in their intimate relationship to the self.


Intellectual Property Law | Law