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, 8 Mar 2008 @ 6:45am

    Re: It IS TO Intellectual Property

    This is OT, but I'd like to explain my understanding of cost, price, and value. Cost is the monetary amount of resources required or spent to acquire an item, whether labor, supplies, durable equipment, and so on. Every item has a cost which can be measured in money. (Air is not an item.) Price is the amount of money agreed on by a seller and a buyer for an exchange. A price set by a seller is merely an offer to sell at that price, just as a price offered by a buyer is an offer to purchase at that price, and we quite frequently negotiate prices. Fair market value, the objective determinant of actual prices, assumes that neither buyer nor seller operate under any compulsion. There are other kinds of prices as well, such as liquidation, wholesale, quick sale, etc. Value is not an objective concept, like cost and price, but is a subjective judgment based on a number of factors. An article may have great value to one person but no value to another, such as a family photograph. The key point is that value is by its nature individual and you cannot talk about the value of something without onsidering the context. For example, I have a 20M hardrive out of an 8088 machine that has much value to me because of the contents, but its value to anyone else is (probably) zero. A synonym for value is worth, and different people can assess the same object at very different worths. What is the worth of your lucky socks? Now, what is their price?

    These definitions of cost, price, and value are not odd, but standard definitions.

    > 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.

    I'm afraid I will have to accuse you of using odd and nonstandard concepts of cost, price, and value. A dictionary might help.

    > 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.

    I know what value means, thank you. Your problem might be that there is more involved here than economics.

    > 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.

    Not to me. To someone else it might have value, but not at $100/foot. If a seller wants $110/foot and sets the price at that amount to cover his costs and make a return, but the market value is only $90/foot, the house is essentially valueless. Yes, if you give it away, it will be a tremendous value to the recepient, but that lacks context. Ask any real estate agent why a property sells, and he or she will tell you that the reason is that the value to the buyer at the time of sale is greater than the agreed upon price and the value to the seller at the time of sale is less than the agreed upon price.

    > 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.

    In this hypothetical, cost is fixed and so is the market value. The builder cannot lower his cost, since that is what he spent to build the house, and he cannot raise the market value, since that is set by the market. The only thing he can do is lower the price, in which case he will not recover his cost. Thus, the house has a negative value ~to him~ even if it has a positive value ~to another~.

    >> 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.

    What do you think I said? Not only do you insult me, you cannot comprehend what I wrote. You say that I have an incorrect view and then immediately reaffirm my point.

    > 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.

    Again, this was the point I made. Price and value are NOT the same concept. (Part of the confusion may stem from the fact that we use the term 'market value' as a synonym for 'price.')

    >>> 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.

    ??? In point of fact, I recently acquired three 'ideas' -- in the form of books by Graham, Lamkins, and Seibel (on Lisp). I bought all three on half.com and amazion.com at less than the stated retail price. This ~IS~ an efficient market, and I valued these ideas (books) sufficiently that I paid money to purchase them. Note: the value is not in the paper and ink, but in the intellectual content.

    > But what you can do is USE that idea to make
    > something else (something scarce) much more valuable.

    What about a recording? The original item, the concept of the song, is extremely scarce as it exists only in the mind of the composer. But let it be recorded -- then it becomes much less scarce.

    >> 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.

    It's you, friend, that's confused. Let me clear this up. The legal system enforces rights as to property interests. To say that IP isn't property, which is exactly what you said earlier in this thread, implies that we have no rights to our ideas. It's one thing to argue that we shouldn't have rights to our ideas, and this is a position that I have a lot of sympathy for. It's entirely another to suggest as you do that our ideas in fact lack legal protection.

    Here are your words, and I quote:
    >>>> 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.

    Consider a quick taxonomy of property: real/personal property; tangible/intangible personal property; documents, contract rights, obligations, notes, commercial paper, securities, unliquidated debts, and so on. If we can protect an ownership interest in a corporation, a 'thing' which has no physical existence whatsoever, surely we can protect an ownership interest in a poem or a song, or a piece of software. Correct?

    > Things may have plenty of value without being property
    > or without costing anything.

    Name one thing that has value and can't be considered property. Hope, love, joy, peace, etc. have much value, but are not things. My note to the bank evidences my obligation to repay a debt, it's not a tangible thing, but my bank certainly possesses a property interest in my debt to the bank and can enforce that obligation upon my nonpayment.

    >> 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.

    This is a distinction without a difference. Your term 'regulatory monopoly' asserts the existence of property rights in ideas. Take away the property rights in the ideas and you destroy the regulatory monopoly.

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