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
    LuYu, 8 Mar 2008 @ 10:32pm

    Re: Infinite Goods Tied to Finite Goods

    That is understood, but the issue as I understand is when tangible property is employed to create this infinite resource. I call it: Artists need to eat. Namely by not granting this "monopoly" to the creators we are disincentivizing the creation of these goods in the first place. For instance why would musicians try to create and sell music if instead it is swarmed through the torrent network gratis? Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?

    I think this is the most classic failure in people's imagination. While arguing that incentives help encourage innovation, it it not necessary to take such a gargantuan leap as to say that money is the only incentive to creation or that creation would not occur in the absence of government enforced monopolies.

    People create all the time for non-finantial reasons. How many times in your life have you drawn a picture? told a story? given advice? written a term paper? hummed a tune and made it up as you went? made up a joke? changed a joke because you could not remember the original telling well wnough? answered a question you had not previously considered?

    On your computer and on the internet, there are many activities you do not get paid for as well. You compose email, chat on IM, argue on fora, alter the colours or background of your desktop, listen to random compilations of your music collection, or maybe even write programs or scripts to get tasks done. Nearly all of these activities generate not only copyrightable but copyrighted works. Do you ask for money for any of these things?

    Every one of these acts is an act of creativity, and we all do it in the natural course of communication. Almost none of us get paid to speak or write, but we do it all the time. In my case, I think it would be more likely that people might pay me to shut up. Maybe I can try to claim a copyright on silence like some other crazy people.

    As far as creativity is concerned, I have seen more creativity in the last few years on the internet than I saw in the first thirty or so of my life in all other media combined. There are many examples of this. You, of course, posted because you had an opinion, not because you might get a multimillion dollar publishing contract, nor because some periodical paid you to write it. Genres like Fanfic -- a group of people who write entire books to extend upon the characters in popular stories -- exist entirely hidden from the profit incentives of copyright. In fact, if Fanfic were exposed to the light of day copyright holders would sue them into oblivion. Almost no one's websites pay. The percentage of websites that pay even enough to maintain their operational costs cannot be more than one in one hundred thousand (if that). The blogosphere is currently growing at an exponential rate, filled with the creative output of every Tom, Dick, and Harry -- and their mothers and grandmothers. Flickr probably has more posted photos than all the photographs taken before 1990 (who pays people to photograph their children and pets?). YouTube is absolutely inundated with videos made by people who just want to entertain their friends.

    Why? For a million reasons, but mainly because people are social animals and need to communicate. Art and creativity are a part of our dialogue with the rest of the world. They are the new speech -- our mouths are limited apparati for communication. This is the speech that we make with our artificial mouths, and we are all artists. Paychecks are a totally separate issue.

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