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), 9 Mar 2008 @ 2:40pm

    Re: Re: It IS TOO Intellectual Property

    > You are saying that the gov't has a societal interest
    > in artificially inflating the price of that output via
    > an artificial scarcity.

    No! I'm saying that the INDIVIDUAL (and by extension the society) has an interest in seeing a return on his labor. A workman is worthy of his wages.

    And nothing I have said suggests that the individual cannot see a return on his labor. I am saying, in fact, the by understanding the model, and removing artificial monopolies, the laborer can get a greater return. You are saying that in order to get that return, there needs to be a gov't granted monopoly. That is false.

    True, as far as it goes, but the normal expectations for tangible goods does not apply to intangible goods. For example, selling cheap knockoffs of designer handbags has an empirical and detrimental effect on the value of the brand, which is IP, to wit, a trademark. The sellers of the counterfeit goods are stealing from the brand, and they are thieves.

    Two points on this:

    First, as I have made clear multiple times, trademark is a different issue -- it's about consumer protection, not property protection.

    Second, you picked a bad example concerning knockoffs, given recent studies showing that the *reason* the fashion industry is so successful and continues to innovate is *because* of the lack of IP protections and the rise of knockoffs.

    1. The government does not artificially limit the resource, but owner controls the availability of the resource.

    This is flat out false. I am surprised you can claim that with a straight face. What is a patent or a copyright other than an artificial limit on an infinite resource?

    2. Generally, the more limited the supply the greater the demand of the resource, giving away the product decreases the demand rather than increasing the demand.

    This is also wrong. Go take a basic economics course and learn the relationship between price and demand. Anyone with even the most basic economic training would laugh you out of the room for claiming that a lower price decreases demand.

    3. Historical evidence abounds if you look at the history of inventions that have reverted to the public domain, as Jefferson himself implied in your quotation.

    Which historical evidence are you suggesting specifically because I have yet to see any? Instead, what we have seen, throughout history, is that an increase in resources increases output and greatly enhances the economy. I have yet to see a single report that says limiting resources increases the size of the economy.

    4. Control of the supply of the product lies with the owner, not the government.

    Who said otherwise? But the gov't is giving the control to the producers by allowing them to enforce artificial scarcity on the goods.

    Which means that the ~owner~ controls the supply of the product, not the government. All the IP legel regime goes is grant the ~owner~ property rights in the product of his creative imagination. If an artist or inventer thinks his interests are better served by limiting distribution of a product, he or she will do so, not the government.

    The content creator (not owner, mind you) is given a tool by the gov't to artificially limit the resource he has produced. Without the gov't assistance, the producer would not be able to limit it. That is the point I am making.

    This is the result of the management of the property by the owner. Besides which, in the context of digitally distributed goods, like songs and movies, there is no physical constraint to the supply, as there would be for the production of film, tape, vinyl, etc. Digital distribution of a song without charge does not deprive the owner of any physical property interest but deprives him of the intangible thingy of its commercial value. Why buy the milk when you can get it for free?

    Yes, why buy the milk when you can get it for free? But what if that free milk increases the demand for eggs and bacon and orange juice? Then wouldn't it make sense to start giving away the milk and selling the eggs and bacon and orange juice?

    That's all we're saying here.

    I think that you are beginning to see the implication of your position that IP is not 'property.' If it isn't property, then we cannot preserve to the artist or inventor the right to income from the thingy.

    Not at all. I am saying that the implication of IP not being property is that artists do not rely on false scarcity, but instead can do a MUCH BETTER job making EVEN MORE money by associating that infinite good with other scarce goods. It opens up more opportunities for the artist to make more money. It does not take away their right to income at all.

    In essence, what this does is bifurcate the property domain into tangible property, which the law protects, and intangible property, which (you believe) the law should not protect. This is, in a word, unjust exploitation of the creative energies of our intellectual workers.

    Not at all. I am afraid that you are quite confused here. What I am saying is that rather than having the gov't artificially prop up the market by granting monopolies to individuals, we can let the free market price things appropriately. Other business models will arise that allow the content creators to profit greatly while still giving away the content for free. It is not exploitation, it is an efficient marketplace.

    The only exploitation has come at the expense of society, that has inflated the market price for content by putting an artificial monopoly on it, limiting supply and hurting our economic prospects. That's quite dangerous.

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