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.
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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), 8 Mar 2008 @ 1:17pm

    Re: Re: It IS TO Intellectual Property

    I'm going to ignore most of the debate over the definitions of cost, value and price, other than to say clearly we are using different definitions. Mine are based on economics. I don't see what your are based on, but if you want to use them, go ahead.

    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~.

    It wasn't clear from your initial post that the house was built already. You don't mean that costs are "fixed" you mean that they're "sunk costs." Related, but different.

    However to say that the builder cannot raise the "value" is incorrect. The value is not set by the market, the price is. So again, we run into the same problem of definitions. Oddly, in your next sentence you admit that the value is different to different people, while previously stating that the value cannot be changed.

    It is ridiculous to think that the builder cannot raise the value of the house by doing something else to it. The point that I keep trying to make is that when you limit hypotheticals to single case scenarios you miss the wider ecosystem as to why the model I'm discussing makes sense.

    That's why you get upset when people say you shouldn't sell music (the output). But when you focus just on the music, you miss the wider ecosystem, which notes that giving away the music makes many other things (concerts, access, etc.) much more valuable (raising demand).

    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.

    You did not acquire the ideas. What you did was acquire scarce goods (books) that were made much more valuable by the infinite goods (the ideas) that were in them. So, yes, the price was set by the market, as we can see, and it's the infinite goods that made the scarce goods valuable. Proving my point. I'm not sure why you think it proves yours.

    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.

    Yes. I have made clear that any song not recorded is still scarce. That's why it's a reasonable model to pay someone *to record* that song. However, once it's recorded and available in digital format, it becomes infinite. However, that's not a bad thing. It can then be used (for free) to promote many other scarce goods, including the ability for the musician to create the next song (for a fee, since it's scarce prior to production).

    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.

    Aha. Now I see where we are getting confused.

    We are arguing two separate things. I am not arguing that there isn't legal protection for ideas. I am arguing that it's not necessary. I do think that there needs to be legal protection for REAL property, because economically that makes sense. I am saying there is no need for it for ideas, because economically it does not make sense -- and the reason it does not make sense is because ideas are very different from property.

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