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. identicon
    G. Ziemann, 7 Mar 2008 @ 8:20am

    Re: Infinite Goods Tied to Finite Goods

    Artists need to eat. Namely by not granting this "monopoly" to the creators we are disincentivizing the creation of these goods in the first place.

    Since you're talking about music, please remember that there are two copyrights which apply to recorded music. The sound recording copyright (the one which is currently being abused in the legal system) belongs to the record label by default. The creators of the music have no "monopoly" over sound recordings, it goes to whomever pushed the "Record" button.

    What really is "disincentivizing the creation of these goods in the first place" is the knowledge that the record label will do everything in their power NOT to pay the artist for the sale of physical goods.

    Remember the Bay City Rollers? They initially received an advance of $250,000. After selling more than 70 million albums, they're still waiting for the first royalty check. Sony has $80 million of the BCR's money that they're holding because they lost the original contract and purportedly don't know how to divide it up properly. So they're keeping it.

    That was way before the Internet. This is how the recording industry treats artists when business is booming.

    For instance why would musicians try to create and sell music if instead it is swarmed through the torrent network gratis?

    The same reason that we used to like hearing our songs on the radio, except you don't have to pay to make it happen. Musicians never got paid for radio play, either.

    Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?

    There is no cost or risk involved in creating music. You need a pencil, a piece of paper and an idea, not in that order. The cost and risk comes in when you try to convert the music into physical products and sell them.

    Musicians make money for performing, whether it be on stage or in the studio. The price is negotiated before we start playing, and most of us will insist on being paid in full before we even open our guitar cases.

    "Music is everybody's possession. It's only publishers who think that people own it."

    -- John Lennon

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