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
    Mike (profile), 7 Mar 2008 @ 10:47am

    Re: Re: Re: Infinite Goods Tied to Finite Goods

    Easy to say, harder to prove.

    Not really, once you actually look at the economics and historical examples.

    Please elaborate on how an artist/songwriter gets paid if his music is freely downloadable and he doesn't tour. Then explain how he's supposed to cover studio expenses with free o/

    Well, first of all, that's a little like saying "please explain how the factory worker makes money without going to the factory." You're putting a condition on the situation that limits the opportunities to make money.

    However, it does not exclude all models, as is quite clear from a variety of circumstances. All you need to do is connect the infinite goods (the music) with other scarce goods. Concerts may be the most obvious, but are hardly the only one. Take a look at the Jill Sobule example we wrote about. She's getting true fans to pay up for additional extras, including being able to interact with Jill or getting your name as an executive producer or having a song written about you or even getting to perform on the recording.

    There are plenty of ways that "access" need not contain concerts, though it does shut off a large revenue stream.

    Hell, Trent Reznor showed one way just this week: by making a physical product (his deluxe collection) worth paying $300 for. Even though the music was free. He earned nearly a million dollars just on that alone. As I said when I wrote about that, this can work on a smaller scale for smaller bands as well.

    He needs to get that money from somewhere... He also needs to eat.

    Over the past few years, we've given probably a hundred examples of musicians making plenty of money by giving their music away for free. Some get very creative as well. My favorite is the band that started their own travel agency to help fans travel the country to see their performances. For a while, at least, the travel agency part was making more money than the music sales.

    I guess songwriters are expected to live on the street in a box?

    Not at all. Just because you aren't creative enough to find a business model, it doesn't mean they don't exist. Songwriters (just like most software writers or journalists or whatever) can certainly be paid on a fee-for-hire model. If you write a good song that becomes a hit then your fees go up for future songs you write... just like if you're a star programmer your salary goes up, or if you're a top journalist your salary goes up. Same thing.

    You guys just know it all... Idealism is great here on the internet. To a working musician it's meaningless. They need money to eat, not lofty ideas of what they should be doing with their music.

    When we've pointed to example after example after example of this working in practice, as well as detailed explanations of the economics as to WHY it's happening in practice, this is not "lofty idealism." This is explaining what's actually happening and how to make it work for you.

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