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 @ 10:43pm

    Re: Re: Re: What is the problem with IP or ????

    Things are a lot easier once someone has done it. If I spend my lifetime creating a movie, software, music, or some other creation in digital format, then the fact that someone can copy it digitally means it must not have been valuable? WTF?

    You have confused value and price. I never said that it was not valuable. I said that the free market would price it at zero. Yet that doesn't mean you cannot make money from it. THere are many business models by which you can make plenty of money, even if you spent all that time creating a movie, software, music or some other creation and giving it away for free.

    I'm saying let the free market price the good appropriately and you'll see those other business models emerge.

    So, an inventor can always be overtaken by a megacorporation who has the factories, distribution network, and contacts to get the product into stores? What was your point again?

    Ah, the old myth. You see, that doesn't happen all that often. Sure, it happens sometimes, because the larger company may be more efficient and better -- but that should be what we want. The better company should win. That's what capitalism is all about.

    But, you're very wrong to think that the megacorporation always wins. In fact, the opposite is what occurs. Look at the research of Eric Schiff on what happened in the Netherlands and Switzerland when each chose to forego a patent system. Highly competitive industries developed, rather than big megacorps.

    Look at the research of David Levine on the pharmaceutical industry in Italy in the 1970s and 1980s. Prior to 1978 you could not get patents on pharma in Italy, and Italy had one of the world's largest pharma industries, with over 400 pharma companies producing all sorts of new compounds. Yet, after 1978, when patent protection was added, the industry shrunk drastically, and just a few multinational pharma conglomerates took over, using patents to wipe out the smaller competitors.

    So, I'm afraid that history does not support your belief, nor do the basic economics.

    Smaller companies tend to be a lot more nimble than large lumbering companies who cannot react to those upstarts. Small upstarts not only can change the game and run circles around the big companies quite often -- and as those big companies start to "copy" and try to catch up, the smaller companies have already moved on and continued to out innovate the larger company.

    No, it doesn't always happen, but it happens quite frequently. To insist the larger company always copies and wins is flat out false. It's a lot rarer than you would think.

    The "first mover" advantage is only so valuable.

    Actually, it's EXTREMELY valuable. Again, I suggest you look at the research. David Levine did an excellent study on what happened with the 9/11 Report, which was public domain, but was given to one company to publish first. That company ended up with a huge majority of the sales, despite the fact that other publishers rushed out their own versions within a day or so.

    Look at the resarch on the price differential between generic drugs and brand drugs after a drug goes off patent. The brand name drug stays incredibly expensive, despite the generic on the market.

    First mover advantage goes incredibly far.

    Ultimately, products can be stolen from inventors by savy marketers and mega-corporations.

    Again, that only is a problem in a static world where there isn't ongoing innovation. Back here in the real world, the little company tends to be faster, more nimble and comes out with new innovations just as the bigger firm is copying the old product.

    I just love the world you suggest we live in. You have so many assumptions. By the way, are you a marketer or megacorporation, because everything you're suggesting sounds like a sneaky way to open up the market so you can steal people's work while feeding the public lies about its benefits.

    Not at all. I run a small startup that is out competing with a bunch of megacorporations, and doing quite well. If they copy our idea, that's fine. We purposely set up a business model that was quite hard for them to copy and would effectively rot their own infrastructure. That's called good business.

    So you're admitting that your new-and-improved system will be worse for the creators, innovators, and inventors? You tell them they just have to keep running and running because they won't be able to make a profit as they do currently?

    Not at all. It's better for creators, innovators and inventors because they continue to innovate and create. Isn't that what we want? The entire STATED PURPOSE of the patent and copyright system is to encourage MORE output. So now when I point out that's exactly what my system does you say that's bad? I'm confused. The more you innovate, the bigger the market is and the more you can profit. Should we have stopped with horse carriages because when the automobile came along it meant the horse carriage makers had to innovate? No, I think we'd all admit that the automobile market was much bigger. I'm talking about helping people move from the horse carriage market to the automobile market so they can be a part of a much larger market.

    How is that possibly a bad thing?

    Your suggestions are implicit admittions that your system helps the mega-corporations, the thieves, and the morally-bankrupt who would steal a person's work for their own gain. You'd be a lot more honest if you'd just come out and admit this.

    My goodness. Not at all. What I'm discussing actually tends to work much better for small companies who are more nimble and can adapt, unlike the lumbering big companies.

    It amuses me that some people insist I'm pro-big company when I talk about this stuff, and then other people insist I'm a communist trying to take down big companies.

    It's neither. I'm merely pointing out the economic FACTS and REALITY that any company can embrace to increase the size of their market and make more money.

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