If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?

from the rethinking dept

Continuing my ongoing series of posts on "intellectual property," I wanted to discuss the phrase itself. It's become common language to call it intellectual property, but that leads to various problems -- most notably the idea that it's just like regular property. It's not hard to come up with numerous reasons why that's not true, but just the word "property" seems to get people tied up. There are some who refuse to use the term, but it is handy shorthand for talking about the general space.

The main reason why I have trouble with the "property" part isn't just the fact that it leads people to try to pretend it's just like tangible property, but because it automatically biases how people think about the concept. As I've written before, the very purpose of "property" and "property rights" was to better manage allocation of scarce resources. If there's no scarce resource at all, then the whole concept of property no longer makes sense. If a resource is infinite, it no longer matters who owns it, because anyone can own it and it doesn't diminish the ownership of anyone else. So, the entire rationale for "property rights" disappears.

Even if you buy into the concept of property rights for intellectual output, a look at the history of property rights suggests that the laws are eventually forced to reflect the realities of the market. Our own Tim Lee just wrote up a masterful comparison of property rights in the early United States to copyright laws, noting how property rights in the US needed to change based on usage, rather than forcing everyone to follow the in-place rules. It's not difficult to see how the same may happen when it comes to "intellectual property" as well, if various companies who rely on those laws don't recognize the realities they face.

However, if we don't want to call it "intellectual property" what should it be called? Here are some of the contenders that people toss out:
  • Intellectual Monopoly: Popularized by economists David Levine and Michele Boldrin, who have a fantastic (and well worth reading) book called Against Intellectual Monopoly. As they point out, patents and copyrights really are monopolies much more than they are property rights. In fact, as we noted early on, that's exactly how Thomas Jefferson and James Madison referred to the concepts when discussing whether or not such monopolies should be allowed by the Constitution.
  • Intellectual Privilege: This one is being popularized by law professor Tom Bell, who is working on a book by the same title. While this is nice in that it retains the "IP" designation, it's also a bit cumbersome and requires a pretty detailed explanation for anyone to understand. For that reason, it may have a lot of difficulty catching on.
  • Imaginary Property: Another one that retains the "IP" designation, and is growing in popularity on some blogs. It's also a little troublesome because it's probably the least accurate (and may also imply something entirely different than copyrights or patents). It gets rid of the "intellectual" part, and keeps the property part, even while calling it imaginary. But, intellectual output isn't imaginary. It's very real. That doesn't mean it's property, of course, but imaginary property may set people off in an entirely different manner.
  • Others: Other suggestions are even less common, but deserve to be mentioned as well, if only briefly. There's use monopoly. Richard Stallman has suggested and rejected Imposed Monopoly Privileges (IMPs) and Government-Originated Legally Enforced Monopolies (GOLEMs), which are cute, but... not very practical. Some have even tried to tie the concept more closely to the "Promote the Progress" constitutional clause -- though, that really only covers copyright and patents. Besides, you again have the problem of it being cumbersome.
  • None of the Above: There's definitely something to be said for voting for none of the above and clearly separating out each of the different types rather than lumping them all together into a single bucket.
In the end, I don't think that there's really a good answer. I think it makes sense for it to be context specific. Using "intellectual property" too freely is definitely a problem, as it creates a mindset and a framework that isn't accurate for the type of rights provided by patents, copyrights and trademarks. Yet, all of the other options have their own problems as well. I tend to think that whenever possible, it's best to use the specific type being discussed (i.e., patents, copyrights, trademarks, etc.). In general, because of common usage, I don't think it's bad to use the phrase "intellectual property" just so that people know what you're talking about -- but we should be careful to not use it in a way that reinforces the concept that it's property just like other kinds of property.
Links to other posts in the series:
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Filed Under: copyright, imaginary property, intellectual monopoly, intellectual privilege, intellectual property, patents, techdirt feature, trademark


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  1. icon
    aglynn (profile), 26 Jan 2015 @ 3:41pm

    Infinite vs interminable

    Intellectual property is not 'infinite', it is interminably reproducible at a marginal cost.

    The problem is not infinite vs finite property, nor is it limited to IP in the first place. The problem, which is showing most clearly in IP at the moment, is in the notion of property itself. The following quote is full of the inanity of the common notions of property:

    "Property that is infinitely reproducible is just like money. However, money is borrowed into existence and interest is paid on that process. Since more government resources are required to protect IP, therefore IP income ought to be taxed at a either a greater marginal rate or add new margins over the current margin of USD250,000."

    First, money is not property, it is a measure of exchange. The substantialization of money as 'capital' is the biggest myth of our society. Most of the 'capital' or monetary accumulation cannot be realized in terms of either real estate, goods or services, and as such is for the most part fiction.

    Second, anything whose value is dependent on something outside itself, i.e. a social or technological network of relations, can never be simple property. My iPhone is a perfect example, without continued support from the cellular networks and software developers it becomes almost instantly worthless. Thus anything other than a 'mere' thing can never be fully owned. The "internet of things" will create an analogous problem in physical products as we see currently in IP, except the problem is not interminable reproducibility, but the more fundamental loss of the commonly assumed meaning of ownership itself.

    The above is not limited to IP or technology. The same is true even for real estate - without demand to utilize it, it isn't worth anything. Or to put it in more realistic terms, the less the median person can afford, the lower the value of the rentier property of the wealthy must eventually drop to, since at any higher price demand will disappear.

    The resources necessary to protect property are as interminably reproducible as the 'property' itself. When property is nearly non-reproducible, the resources needed to protect it are extremely limited, as examples like Fort Knox or the Mona Lisa demonstrate. This limitation disappears further the more reproducible anything is.

    The fundamental cost associated with non-intellectual goods is energy, if the ability to maintain a fictionally high cost of energy is lost, then non-intellectual goods may become as reproducible as intellectual goods.

    Even without the latter, though, the notion we have of ownership is outdated. How many people are quite sure what they in fact own when it comes to an iPhone or a Kindle? The licensing on software at least is very clear: you don't own anything.

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