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
    DanC, 9 Mar 2008 @ 4:47pm

    Re: Re: It IS TO Intellectual Property

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

    No, that's your definition of theft. I prefer the more accurate version myself (from Miriam-Webster): "the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it." Infringement does not involve the removal of property, it involves the violation of the rights associated with said property.

    Depends on how you acquire it. If from a source on your property you are correct.

    In other words, you agree that just because something is free does not mean it has no value. Thank you.

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

    The Copyright Clause in the U.S. Constitution states: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In other words, the purpose of copyright is to encourage an artist to create further works, ie. introduce new ideas. The definition of innovation is "the introduction of something new", so I will stand by my original statement. The protection of the work is a method, not the intent.

    The owner of a trademark has the EXCLUSIVE right to the mark and can prevent others from using it forever.

    The purpose of trademark is consumer protection. And the rights associated with a trademark only apply withing a defined market. That isn't to say it isn't abused, as in the case of the NFL.

    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.

    No, that isn't the question. It's your straw man argument based on false assumptions. Obviously artists, inventors, companies, etc. can benefit from their work regardless of copyright or patents, and have been doing so for years. As previously stated, copyright is only one source of income. It is not the only source.

    No. I'm just pointing out that intellectual workers are entitled to earn a living from their work

    Except that wasn't what you said. You specifically asked for examples of artists or inventors benefiting from the free distribution of their work. You then said I couldn't, so you would discount my argument. I provided examples where the artists did benefit from the free distribution of their work, and you still discounted it.

    Stealing someone else's property isn't a new business model.

    I love that you keep jumping to these wonderfully illogical conclusions. Again, no one is putting forth infringement as a business model. You are putting forth straw man arguments.

    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.

    ...sigh...really? You're going to resort to the tired "you just want something for nothing" accusation too? Again, another false assumption. Again, I'm not advocating illegal activity, and therefore I don't need to rationalize it. If you want to argue against basic economic forces, be my guest.

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