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, 9 Mar 2008 @ 3:47pm

    Re: It IS TO Intellectual Property

    I'll try to be brief, even if I don't respond to all your points.

    > Actually, I have a perfectly realistic view of theft.
    > If I download an MP3 of a song without paying for it,
    > I have violated copyright, but I haven't stolen
    > anything.

    You have if you derive commercial benefit from your download, e.g., sell it and keep the proceeds of the sale. Additionally, if you download the song against the performer's express intent to preserve to hemself the exclusive right of distribution, you have committed theft.

    > That doesn't make it right, but it does mean it
    > isn't theft. The owner hasn't lost anything - you
    > can't even argue that they lost the cost of the
    > song, since there's no guarantee that I would have
    > ever purchased the song.

    Think again. You have taken something of value without permission (assuming you don't have permission.) That's the very definition of theft.

    > Theft involves a loss of property, infringement
    > is a violation of rights. There is a difference,
    > even if you refuse to recognize it.

    'Property' is not a thing but a collection of legal rights. Look up the word in the dictionary. 'Theft' is an infringement of the owner's rights in 'property.'

    > I can acquire water for free, making me the owner
    > of said water. By virtue of it being free, the water
    > then has no value? I can't live without it, so
    > the presumption that it has no value to the owner
    > is false.

    Depends on how you acquire it. If from a source on your property you are correct. If you bypass the water meter or shoplift the water from a store, you have committed theft.

    > The sole purpose of copyright is to encourage
    > innovation and the development of the works
    > protected by copyright.

    I think you are referring to patents. Copyright was never meant to encourage innovation.

    > You need to reread my previous post. I specifically
    > stated that a person DOES deserve to be paid for his
    > work. The product or result of that work, however,
    > may or may not merit payment, depending on
    > scarcity, demand, and other market factors. You are also > once again incorrectly assuming that copyright
    > provides the only source of income.

    What about trademarks or patents? The owner of a trademark has the EXCLUSIVE right to the mark and can prevent others from using it forever. The owner of a patent also has the EXCLUSIVE rights to the invention for a period of time. The author, composer, or artist also has EXCLUSIVE rights to his work, and for original works or limited editions, the point IS scarcity. A performer has the EXCLUSIVE right to control his performance, and if you violate his right by distributing his performance without his permission you are liable for the consequences of your actions.

    > I am not against the principle of copyrights. I am
    > against the current implementation of copyrights,
    > which serves to stagnate innovation.

    I think you mean patents. Copyright has nothing to do with innovation, but the protection of literary or artistic work.

    >> I find the suggestion that producers of
    >> intellectual goods be denied the ability to earn
    >> from their labor incomprehensible.

    > Except that's not what is being suggested. You
    > are continually assuming that copyright creates
    > the only incentive for creation, which is adamantly
    > false. You also incorrectly assume that copyright is
    > the only method of securing an income from created
    > works, which is also false.

    Again, what about patents and trademarks? You seem to focus on copyrights, and that's only a part of the discussion.

    >> Show me how holders of copyrights, patents, and
    >> trademarks can benefit from the free distribution of
    >> their work, and I might agree with you

    > You're joking, right?

    No, I'm not joking, and your examples don't do the job.

    > Let's see...Radiohead allowed users to pay whatever
    > they wanted for digital downloads of In Rainbows, yet
    > were able to make money. Trent Reznor of Nine Inch
    > Nails is offering the first nine tracks of his
    > current album for free online, which drove traffic
    > to his site, allowing him to sell out of the $300
    > limited edition version. If you want an example
    > involving books, John Scalzi's book "Old Man’s War"
    > was recently given away for free by Tor, which
    > increased demand for the paperbacks. In each case,
    > using infinitely available resources to increase
    > sales of scarce resources.

    In each of these cases, the freebie was connected with some perceived benefit for the owner, which wasn't the question in the CONTEXT in which it was asked. The CONTEXT is that IP isn't property, that is, artists, inventors, and brandholders shouldn't be allowed to profit from their work -- this was pretty explicit in this thread. Again, show how the producers can benefit from their work if they cannot derive a return from their work. This is the question.

    > In other words, you are stating that you're close
    > minded to new ideas pertaining to marketing and
    > business models, and that no evidence to the contrary
    > will ever convince you. In that case, I would ask
    > why you're bothering to contribute to the discussion.

    No. I'm just pointing out that intellectual workers are entitled to earn a living from their work, just like assembly line workers. Giving away stuff can create markets, this was demonstrated by the radio and TV industries, even by the razor blade and cigarette manufactures 100 years ago.

    If someone can come up with a successful business model which is new, and make money from it, that's great. Stealing someone else's property isn't a new business model. Even if the product (e.g. a digital download) cost nothing to make and is a virtually infinite supply, if you take something without paying for it, that is, it's not being given away, you have committed theft, and you belong in jail. No amount of rationalization on your part can change this simple fact.

    I look forward to your continued misinterpretations.

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