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 @ 5:20pm

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

    > 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.

    No. I do not. I mean value and price. Cost is something entirely different. They are 3 separate things. Value is a part of the demand side of the equation. Cost is a part of the supply. Price is the intersection of supply and demand.

    And you are incorrect that if cost exceeds price the value is zero. There are things where the cost may exceed the price, but the value is still greater than 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.

    You have an odd, and incorrect, understanding of "value." I'm not going to give you an economics lesson here, but I would suggest you learn what value means.

    In the meantime, to show why you are wrong, if it costs you $100/foot to build a home, but you can only sell it for $90/foot the house still has plenty of value. To think that the house doesn't have value makes no sense. The house is valued by at least someone at $90/foot (the demand side of the equation). What you're saying is that the supply keeps it above that price meaning that the demand and supply curve do not meet at the *cost* ($100/foot).

    But, even more to the point, if you couldn't sell it for the price you built it at, then you would (if you were smart) do something to either lower your cost of production or raise the value of the house. It doesn't mean you just abandon the house. It means you do something. Maybe you repaint it, and that gets people willing to pay $95/foot. Then you relandscape. Etc. etc. etc. You don't look at it in isolation, but in the larger ecosystem, which is exactly what I'm talking about with IP endeavors. When you look at it in the larger ecosystem, you realize that it helps to make other things more *valuable* which increases demand, and in turn, can increase the price of those things.

    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.

    You have an exceptionally narrow and incorrect view of economics. If the laborer determines his wage at a price that the market does not believe appropriate, it may be unemployment, but that laborer will soon be forced to look for jobs at a lower wage or he won't eat.

    Note, again, that it's the market -- the INTERSECTION of both sides -- that determines the clearing price. One side does not, as you falsely imply.

    > 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?

    If you can actually sell it, more power to you. The point is that you won't be able to sell it in an efficient market. But what you can do is USE that idea to make something else (something scarce) much more valuable.

    I have said this before.

    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.

    Again, I'm afraid your ignorance of what value and price means makes this discussion difficult.

    Things may have plenty of value without being property or without costing anything. Again, I am now repeating myself.

    I know they aren't the same.

    And yet, by your statements you clearly do not know what they mean.

    IP ~IS~ property, to the extent that we have a legal system that enforces rights and liabilities with respect to ownership interests in idea.

    No, it is a regulatory monopoly. That is not the same as property.

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