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 @ 12:57pm

    Re: Re: Re: It IS TO Intellectual Property

    You have this backwards, bub. 'Property' isn't proscriptive, but descriptive. Whatever the legal system gives you rights in is 'property.' Example: When the law permitted ownership of human beings, as in slavery, slaves were 'property.' You argument SHOULD be, 'do we need to afford legal rights protecting ideas?, NOT, 'are ideas property?'

    Ah, are you a lawyer? I'm not discussing this from the specific legal definitions, but from the realistic real world definitions. That's why I explained why we even have property rights in the first place -- for better allocation of scarce resources. The laws follow on that economic reality. So I'm afraid it's you who have it backwards.

    Our legal system is an artifact, a man made structure. We can change it anytime we like. You are correct in that our modern law grants monopoly interests in ideas and we mostly accept that this is good and proper. The question is one of BALANCE.

    Ah, back to balance. Balance in IP is a myth:


    If you can offer up a system where both sides benefit and neither side is worse off, why do you need balance? Balance only makes sense in a zero sum game. Ideas are not a zero sum game.

    I also think that you are correct in decoupling the concepts of copyright, patent, and trademarks. However, you forgot privacy and identity interests, which are as important if not more so than the other three. Our rights to our identity and privacy certainly fall under the umbrella of IP.

    Indeed. I'm sorry if I didn't make it clear (in the second post in the series) that there are other concepts that fall under IP. I was focusing on these three because that's what's most often discussed in the types of "educational" sessions I was offering a companion to.

    You didn't understand what I meant to say, or I didn't say it right (I made another post in to your first article where I made this point.) If I as a laborer manufacture a physical product, I am entitled to the value of my labor. If I as a laborer manufacture an intellectual product (one that has existence only in the human mind), why shouldn't I be entitled to the value of my labor?

    There are many problems in the paragraph here, so let me try to highlight each one.

    First, you conflate "value" and "price." The two are quite separate (as an extreme example, you value air very much, but you pay nothing for it). Price is set by the market at the intersection of supply and demand. Value is a part of the demand curve. Yet if supply is infinite, it will meet the demand curve at a price of zero.

    So, everyone is entitled to the value of your labor, but it is not the laborer who determines the value, but the market. And in the free market, price will be driven to the marginal cost.

    Finally, no one is suggesting that you are not entitled to make money from your labor. Quite the opposite. As I've made clear, by understanding these economics, you can make much more for your labor. Why you think we said otherwise, I do not understand.

    In a way, discussing 'ownership' is a bit stupid, because what we are REALLY discussing is the protection afforded by the legal system for the intellectual work we do. You seem to be saying that, 'it doesn't have any value unless you can see it.'

    Not at all. I'm afraid you have misread what I have written. It has plenty of value. Tremendous value. But that does not matter to the *price*. Yet, that tremendous value *can* be turned into money by connecting that value to some scarce (not tangible, but scarce) good which is made more valuable thanks to the infinite good.

    I don't think you mean this, but this is the logical implication of your point, taken to the extreme.

    Not at all. I don't see how you can make that claim unless you believe that price and value are the same. They are not.

    As a software developer, I see my work as valuable to my employer, as so does my employer, so much so that my employer pays me to produce ideas, which are IP even though they may be represented as source code, or as tiny magntized bits on magnetic media.

    Yes, and there's nothing wrong with that. The bits that you produce are scarce before you produce them. Your employer is paying you for a scarce good (your ability to produce good code). In fact, the more good code you produce, the more any employer will assume that you can produce good code in the future, and the more they're willing to pay you for it. That actually supports this model exactly. You are being paid for a scarce good (your time and your ability to produce good code) and it's made more valuable by the infinite goods you produced in the past.

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