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 @ 3:41pm

    Re: Re: Re: It IS TO Intellectual Property

    > 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.

    ??? You get a zero, bub. The VALUE is set by the market, which is exactly what 'fair market value' or 'auction value' means. The owner has very little to do with controlling the value, except in cases of monopoly which is why we generally disfavor them. OTOH, the PRICE is set by the owner, at least initially, and is subject to negotiation between the seller and the buyer. The value of an item to an individual is separate and distinct from the fair market value, which is the point in my comment about the explanation of real estate sales.

    > 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).

    True in some cases but not others. Do you think that Microsoft would see an increase in demand for XP or Vista if it gave XP or Vista away for free? I don't think so.

    > 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.

    Actually, the ideas were exactly what I acquired, not the physical objects, although the the physical objects contained the ideas. In fact, two of the products, Seibel and Lamkins, are available for free, but I chose to purchase the books in large part to encourse these men by financial reward. I 'own' both soft and hard copies of Lamkins and Seibel, but that doesn't prove your point, as the purpose of these authors isn't to sell books but to promote Lisp. This was THEIR decision, not mine.

    > 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.

    No? You are promoting theft, plain and simple, at least to the extent that the artist's intent was to derive economic advantage. How in the h**l does a free, infinite supply insure a return to the performer? In some cases, it increases demand, while in others it won't. Example: recordings of the Beatles. Since they cannot perform in person, the only income they derive is from selling their recordings. How does giving away the digital form of the recordings help them (or their estates for the dead Beatles?)

    > 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.

    What you are arguing is that intellection work and the fruit, intellectional property, should be pricelss (free) and therefore valueless. This is the ultimate insult to all thinkers and creators -- to say that BY LAW they cannot profit from their work.

    > I do think that there needs to be legal protection
    > for REAL property, because economically that makes sense.

    Actually, we don't 'own' REAL property because in theory real property cannot be 'owned.' All we can own is title to or other interests in real property. Besides, we have elaborate systems set up to deal with real property, such as deeds, recorders of deeds, titles, title insurance. etc., non of which applies to IP except to patents.

    > 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.

    If you mean 'property' in the sense of tangible property, you are correct. If you mean 'property' in the usual sense of describing a set of rights in a thing, you are dead wrong. Miscrosoft can 'own' rights to sell XP and Vista just as surely as it can own a building in Redmon. Same thing as to the recordings made by the Beatles, whether manifested on vinyl, tape, CD, paper, whatever.

    > 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).

    What if the musician has disbanded, or disabled, or dead, or otherwise not performing? Suppose it's a reproduction of a one-of-a-kind, such as a painting or a sculpture? You have turned your original essay into a provocation for piracy, which I find absolutely reprehensible.

    Suppose you tell your employer that you are willing to work for free, that you expect no return for your efforts, because that is EXACTLY the model you have just described.

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