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
    Charles Carter, 7 Mar 2008 @ 2:11pm

    Re: Re: Re: Re: It IS TO Intellectual Property

    > Ah, are you a lawyer?

    I'll let that pass.

    > why we even have property rights in the first place

    There have been many theories as to why we have property rights, but so far as I know no definitive conclusions. Suffice it to say that we have property rights without getting into why.

    > So I'm afraid it's you who have it backwards.

    The word 'property' describes concepts in the real world. The legal system alters and modifies rights that all human societies and cultures have recognized. 'Property' exists in all human groups, as opposed to 'property rights' which are governed by the legal norms of particular societies.

    > Ah, back to balance. Balance in IP is a myth:
    > http://www.techdirt.com/articles/20071214/184433.shtml
    > 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.

    No, a balance between the natural state where all ideas are free and there is no protection for IP (as Jefferson recognized in your initial quote) and the present legal climate where the perception (or reality) is that some (RIAA, MPAA, patent trolls, etc.) abuse the legal system for wrong purposes (abuse of the IP rights granted by law.) There is always a balance -- we live in a continuum with an infinite number of shades of grey, and the trick is to pick the shade of grey that maximizes benefits while minimizing costs.

    > 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.

    You did. Unfortunately I was the victim of identity theft on Tuesday of this week and was responding emotionally.

    >> 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?

    > First, you conflate "value" and "price."

    Actually, you mean 'cost' and 'price.' 'Value' is a conclusion based on a number of factors, including the cost of production. Obviously if the cost exceeds the price, the value is zero -- or less than zero as in the case of an asbestos laden building that the owner has to pay the buyer to take off his hands. See next.

    > 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.

    However, if the COST of production is, say, $6.00 an hour, but the product cannot sell for enough to justify the cost, the value will be zero. If it costs me $100/foot to build a home but I can only sell it for $90/foot (hypothetical maket rate) the value of the product is zero.

    > So, everyone is entitled to the value of your
    > labor, but it is not the laborer who determines the value,

    True, but the laborer determines his cost. If his wages exceed the amount employers are willing to pay for a job, it's called unemployment.

    > but the market. And in the free market, price
    > will be driven to the marginal cost.

    The price will be the amount that a seller will accept and a buyer will pay. This isn't really relevant to the discussion at hand.

    > Finally, no one is suggesting that you are not
    > entitled to make money from your labor.

    Even if the fruit of the labor is an idea?

    >> 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.

    The implication of your heading is that 'it' is 'not property.' You will pardon me from concluding that since you claim that 'it' isn't property that 'it' has no monetary value.

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

    I know they aren't the same. As in your example, air has tremendous value but no price (unless you need to be hooked up to an inhaler.) The marginal cost of Win 2003 Server is essentially the cost of the media, which is almost zero if you download it (which I just did - from Microsoft.) It cost me nothing, it cost Microsoft nothing, but it might have great value to me if I install and run it.

    But 'it' is not the CD, nor the stream of bits comming in over the wire, nor the pits and flats on the media, but the intellectual content. Do you know Neal Stephanson's long essay 'Cryptonomicon'?

    I think I agree with you in almost everything. I particular abhor software patents. I agree that the present system is broken and needs to be fixed. I think we should strongly uphold the principle that ideas are free. However, I think we should strike a balance (that word again) between the freedom of ideas and the ability of one to reap the fruit of his labor, whether artist or developer. Or lawyer for that matter.

    IP ~IS~ property, to the extent that we have a legal system that enforces rights and liabilities with respect to ownership interests in idea. This actually is a good thing as it allows intellectual work, again either as an artist or developer or lawyer.

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