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
    MLS, 7 Mar 2008 @ 8:45am

    Re: Re: Techdirt

    I reread my comment and realize I was not altogether clear. In referring to "bad apples", my intent was to express that there are persons who misuse/abuse the law, and not to express any opinion concerning patents per se. Yes, patents of questionable validity do issue with regularity. I do not, however, attribute this to a significant defect in the law, but to the fact that people make mistakes...especially within the USPTO where examiners are under pressure to produce with limited/imperfect resources and substantial time constraints.

    When I first began my legal practice in the late 70s the state of patent law was relatively stable and did not engender a constant demand as is the case of late that the system is in dire need of change. It was not until the mid 80s or so that I saw the tide changing, not because the law was defective, but because all of a sudden it became quite the "feather in one's cap" to start calling themselves "IP" lawyers. Why? Because many attorneys follow the money, and within these areas of law they saw the opportunity to expand their legal practices to become much more profitable. One need only witness some damage awards to understand this phenomena. Litigators with no experience in all aspects of "IP" law (which I deem an absolute necessity) began calling themselves "IP" lawyers and the die was cast for many of the subsequent abuses we see today. In my view this does not mean that the law is "bad" and requires fundamental change, but that abusive behavior underlies most of the problems we note today.

    In my experience the vast majority of innovation occurrng within the US is not preserved under our patent laws. I daresay that only a relatively small fraction of them ever lead to the filing of a patent application, an even smaller fraction lead to the eventual issuance of a patent, an even smaller fraction cover innovations that strike a responsive chord in the relevant industry, a still smaller fraction lead to threatening claims directed at alleged infringers, an even smaller lead to the commencement of litigation, and only a small fraction of those actually result in a trial on the merits. What seems to be driving much of the discussion of the need for reform is the perception that a much larger percentage of issued patents cause real problems in relevant industries, which I submit is an erroneous perception.

    I readily admit there are areas of both copyright and patent law that should be looked at for possible amendment (venue shopping being one of them), but I do believe that as a general rule most of our patent laws are basically sound and reflect those policy choices made shortly after our constitution was adopted by the enactment of our first set of patent laws, the Patent Act of 1790.

    Please understand that I am not one who absolutely defends each and every aspect of our patent and copyright laws. In fact, I never ceased to be amazed how these two bodies of law, both of which emerged from the same constitutional "womb" set for in Article 1, Section 1, Clause 8, have diverged so radically. Patent law has remained relatively stable since it first appeared in 1790. The same can hardly be said about copyright law. Grant terms of life bordering on the infinite, expired rights being reinstated because Disney and others exerted undue influence over Congress, etc., etc. ad nauseum. It use to be prior to 1978 that a copyright lasted for 28 years, with one opportunity being given to extend it one time for another 28 years. It used to be that copyright notices were mandatory. Apparently that upset some copyright owners so much that they successfully lobbied for a change eliminating the notice requirement altogether. The list goes on.

    If any of the above is unclear, of if I have not raised other points deemed important to readers, feel free to comment I will endeavor to expound. Our "IP" laws are not the exclusive province of attorneys and academics, and all persons subject to them are within their right to express opinions pro or con. All I ask it that people realize each area of these laws are unique, and that broad generalizations tend to cause unnecessary confusion in discussions by those who may not be fully aware of what differentiates one from the other.

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