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
    John Coleman, 7 Mar 2008 @ 2:21pm


    Would Conceptual Property be any better? Implying that it was something that was conceived by that person. It implies that the concept is unique, or a different approach to a common problem, or a marked improvement upon a previous concept. And if it is, shouldn't that person be allowed to act on it without fear of that concept being preempted or blocked by someone with more resources or previous patent/copyright to a similar concept? Even though, speaking or publishing about the concept makes it available to everyone, that person should be allowed some protection to act on and make a profit from their own ideas in a capitalistic society, whether they be scientific or artistic. From what I've read in your previous posts that was what original patent and copyright was for. In the end though, IP or CP or some other acronym is an argument of semantics. There will always be some for ambiguity in any term used.
    A lot of what I see causing issues in the tech industry, especially software wise, is that the same tools are being used by everyone. The tools are also powerful, provide portability and have a lot of inherency in what can be created with them. This is what has been pushed for years in the industry. But, this is scary for anyone who has marked investment in tech. There are only so many ways to create pieces of code. There are only so many ways to put transistors together. There are only so many ways to create a graphical interface, a word processor, a CPU, a GPU, or any other technical piece that works with what is status quo. At some point, relatively quickly, it becomes hard to differentiate the competition. The same can be said of the arts if you wish.
    To protect themselves,instead of innovating and creating new concepts and new technology, tech companies are using the patent and copyright laws to put up roadblocks to, or profit from how others would use (such as patenting the use of pop-ups for advertising), the inherent features of the tools . Which has been said before so I won't go any further.
    This is an attitude that is hurting the industry. Instead of expanding our knowledge and what we can do, we're constantly fighting over the same 10 square feet of earth. We're letting the power and ease of use of our tools blind us, and the government, to what we should be doing. Innovating, adapting and advancing. We're letting ourselves become weak because we're not pushing ourselves out there. We're not stepping out of the crowd and forcing them to follow us. Or, if you do step out, you get slapped down by someone powerful with a vested interest. Instead, we keep trying to prop up the same old paradigms that we've become accustomed to.
    Of course, now that I've gone through all that, I suddenly realize I've been looking at this whole thing through capitalistic glasses. The idea of self profit blinds many people. If I were to look at things as a socialist, then the arguments would be different. Patents and copyrights are something that are detrimental to equality within a society because they restrict access to those ideas and concepts by the masses. To prevent this, all ideas would have to become public domain once expressed. The communal sharing of the ideas would allow further ideas to be developed more quickly. Which I believe is what the Open Source folks have been preaching all along. While this would be awesome for the society, it would really suck for the individual who wants to profit. It would mean they would need to have implemented the idea prior to announcing it. (Hmmm, no more vaporware.) It also means they have to run the risk during implementation that someone else will express the idea before he's done.
    The reason I bring this up is that maybe what we're seeing IS the death of our old paradigms. OR at least a major clash between the old and the new.

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