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 @ 4:27pm

    : Re: It IS TOO Intellectual Property

    This is just getting goofy, so if you will permit me to make a few points and pass over most of what you said, I'll to that -- and besides, my time now is extremely limited.

    > And nothing I have said suggests that the
    > individual cannot see a return on his labor.

    That is exactly what you said when you said that intellectual property is not 'property.' The protection of property rights is one of the essential tasks of the commonwealth, even in primitive societies. If you declare that the product of the mind no longer deserves protection, you have deprived the person who thinks for a living the right to support himself by thinking.

    >> 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?

    A patent or copyright gives the owner to control the availability of the resource. The government does not dictate what the owner of the copyright or patent does with it. Besides, the theft laws are just an 'artificial limit' on the control of a person's property.

    >> 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.

    What I said was that GIVING AWAY the product decreases the demand. If there is a demand for a million gallons of milk, and I give away a million gallons of milk, the demand for milk decreases. It might not fall to zero, but it will decrease.

    >> 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.

    You said, and I quote:
    >>>> My point (and I believe I've said this multiple times
    >>>> by now) is that by NOT artificially limiting the
    >>>> resource, the laborer will have MORE opportunities
    >>>> to exploit that labor.

    My point is that, if you take away the ability to earn an income for producing a product, you take away the incentive to produce the product. You don't get more work out of a producer by telling him that he won't get paid for his production. You get less work from him.

    >> 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.

    You said it when you claimed that protection of IP was an artificial government monopoly. What the government does, and should do, is protect the owners from those that would trespass upon and take away their property.

    > 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.

    The point you are making is that the creator has no property rights in his creation, and that others can steal it and use it to their benefit without giving squat to the creator. Do you really think this is right by the person without whom the creation wouldn't exist?

    > 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?

    Shouldn't this be the decision of the artist or inventor? They are free to do what they want with their IP. Just don't allow others to make that decision to the detriment of the creators.

    >> 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.

    Alright, this is just plain loony. For the sake of argument, grant that all intellectual work is freely distributed in infinite quantity with no return to the worker. How will this help: (1) software developers who write software for a living (I am one of these.) (2) composers who write music for a living. (3) inventors who license their inventions for a living. (4) designers who make exclusive lines of clothing. (5) artists who produce limited editions of etchings and lithographs. (6) owners of brands like Sony, BMW, and Johnson & Johnson who rely on the premium of their brands over store and generic brands.

    >> 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.

    > 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.

    How then can these individuals protect their intellectual property? If it were tangible goods, the taking of the goods without payment would constitute theft. Why shouldn't intangible property also be protected? The 'government monopoly' you refer to isn't a monopoly at all, but the protection accorded to a creator of intangible property in the same manner as protection accorded to a creator of tangible property. The decision whether to monopolize the idea lies with the person who thought of the idea, not the government, and this is true whether the idea is a work of art, an invention, or a service or trade mark.

    > 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.

    Please explain how the involuntary appropriation of another's effort without payment is not exploitation. OF COURSE it's exploitation!!

    > 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.

    In fact, there is a balance, which you don't want to admit. As a society, we need to balance the rights of creators to their creations against the right of others to realize the benefits of the creations. I agree that you cannot grant absolutely exclusive rights to the creators, but you cannot completely deny them rights. Instead, you need to balence the right of the individual to be secure in his labor with the right of the society to see the benefit from the labor.

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