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 @ 1:06pm

    Re: Re: Re: Re: Re: Techdirt

    You are much too kind saying that copyright law has changed "drastically". Personally, I am of the opinion that in many significant respects it has become "draconian" and out of kilter with the constitutional impramitur of "limited times", to name but one glaring example.

    On this we agree.

    As for patent law, the basic criteria for patentability has largely remain unchanged for well over a century. The key criteria still are "new, useful and non-obvious". Of the "big four", Sections 101, 102, 103 and 112 to Title 35, little has been done statutorily to amend their contents. Except for the addition of the "offer for sale" and "importation" rights (amendments made by Congress in response to certain decisions by the Supreme Court), most other amendments tend to have been more procedural in nature.

    There's a big difference in a change in the law and a change in practice. For many years there has been no real test (or, if you must, a ridiculously weak test) for obviousness. So the "non-obvious" part was subverted as merely being the same thing as "new." That is, the way you proved obviousness was with prior art. Yet, this is a major problem because "new" and "non-obvious" are different things. While prior art can show that something is not new, it does not mean that it is non-obvious to those skilled in the art.

    Bayh-Dole and Stevenson-Wyldler are interesting for many reasons. You might find it of interest that a recent CAFC decision held that Bayh-Dole is not a "patent" statute even though it is clearly incorporated into our patent laws.

    Again, I'm talking about the real world, not the legal definitions. Bayh-Dole has had a tremendous and almost entirely negative impact on the patent system. The only people I know who seem to think it's been good are patent attorneys.

    I am still working on a draft outline examining the constitutionality of governmental agencies, federal or state, being able to secure patents. In my view there are serious constitutional questions raised that lead me to believe one might be able to successfully defend a suit by either states or the feds on the basis that any patents issued to them constitutes an ultra vires act. The same can be said as well for copyrights.

    Interesting. Would be interesting to see.

    The formation of the CAFC has its pros and cons, but I do believe that on the whole it has had at least one very positive effect, and that is to bring on a national level some measure of predictability and stability to the law...not only from the perspective of a patentee, but also from the perspective of an alleged infringer.

    Stability to bad laws and setting bad precedents that hinder innovation doesn't seem like a "pro" to me. The problem with CAFC (and many discussions of patent law) is that it becomes dominated by patent attorneys rather than economists. The purpose of patent law is to "promote the progress" and that should be determined at the economic level, not the legal level. Yet CAFC became dominated not just by patent attorneys, but by the very patent attorney who wrote the 1952 Act. So it became a patent attorney's dream, where the focus was solely on more patents, not on whether or not patents promote the progress.

    It's useful that the Supreme Court has finally recognized CAFC's widespread abuses and continued ignorance of the need for patents to "promote the progress," but the system has gone so far bad that I don't see how it can be fixed in any reasonable way.

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