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
    Ghostwriter (profile), 9 Aug 2016 @ 4:55pm

    Re: Re: Infinite Goods Tied to Finite Goods

    "...why would musicians try to create and sell music if instead it is swarmed through the torrent network gratis? Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?"

    First, Mike, why do we do anything? Not every kid who loves to shoot hoops in the park wants to become a wealthy NBA superstar and all that goes with it. Nor does every person who loves to make up stories want to do it full time for a living. Much of what we do, we do for love, a sense of satisfaction or the feeling of a job well done.

    When it comes to making a living through some talent we possess, I don’t think anyone begrudges us for wanting control over our work for the sake of making a living. Problems arise and bad laws are written only when the irrational energy of fear and greed raises its ugly head. When, instead of using money to facilitate the exchange of goods and services, and further creation, it’s used, instead, to accumulate more money, power and privilege. With this mindset, when is enough, enough? When do the means not justify the end?

    Why would anyone want to use money, power and privilege to measure success when it has no heart? Why not use love, truth and joy? They’re a lot more fun and they have lots of heart.

    Insatiable greed is the kind of energy that foments endless war for profit. It’s the kind of energy that bribes politicians and cripples governments to get legislation passed for its own benefit at the expense of others. It’s the kind of energy that forms secret alliances and meets in back rooms to figure out new ways to gain even greater control over others. Greed is the kind of energy that wants to put a price on everything and a toll booth on every action so it can add to its wealth. It’s irrational and destructive. It’s a cancer that destroys societies, reason and balance.

    At the same time, it serves as a challenge to all of us to understand it and move beyond it. It is but one of many challenges we employ to stimulate growth and bring about change.

    (On June 21, 1788, the U.S. Constitution was ratified.

    Under Article I, Section 8, it says, "the U. S. Constitution gives Congress the power to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.")

    How does unlimited copyright protection “Promote the Progress of Science and the useful Arts”? And where do man’s ideas come from in the first place? Don’t they come from the inner realms of thought, dreams and imagination, a place where we can all share ideas freely, without limitation?

    Before I quit, I’d like to say how impressed I am with Techdirt.com, the writers and the posters. There’s a lot of heart and mind here. Thank you for who you are and what you do!

    From We Create Our Own Reality:

    The challenge of being and creation is learning how to use the power of thought and imagination to shape energy, money included, into a pleasing reality. The prize is a sense of satisfaction, the feeling of a job well done. Like learning how to walk and talk, it is a personal, subjective endeavor that requires creative aggression. It is a great balancing act where we, like babies, must accept falling down as part of learning how to stand up.


    Thoughts are “things” with a reality of their own, and you, an artist. With thought in the form of beliefs, attitudes, values and expectations, you paint the landscape of your life. Create a great day!

    Seek the greatest understanding and serve the highest good.

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