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, 10 Mar 2008 @ 9:16am

    Re: Re: Re: It IS TO Intellectual Property

    I am now on my employer's clock, so I really will try to be brief.

    The context of this discussion is your claim that IP isn't 'property.' As I understand 'property' it is the foundation for the protection of rights and the basis for markets. The concept of 'property' isn't static, as for example in history human beings were considered 'property' (chattel slavery) and ideas were not considered 'property' (hence the protection for inventions and art). By denying that ideas are 'property' you are accurate in a historical sense and also within your right to advocacy. My point is that, in this day and age when much value consists of ideas, that the legal concept of IP is necessary to validate and protect the labor of those who produce ideas. If you agree, then the discussion is over, but then you are forced to conclude that intellectional property is very much 'property' with respect to which the law can recognize ownership and punish those who act in derogation of ownership rights.

    > Charles. You are simply incorrect. You are wrong on
    > the difference between theft and infringement

    'Theft' is taking something that doesn't belong to you. If you deprive an owner of intellectual property the opportunity to derive income from an idea, you may have infringed against his ownership, but you ALSO have stolen this opportunity from him. Period.

    > But you totally ignored Dan's actual point. He said
    > that that exclusive right was NOT the only way that
    > the IP holder could make money. You continue to insist
    > it is. And you are wrong.

    Dosn't matter. If there are one thousands to make money, and you take even one, you still have taken one.

    > You seem to have totally misinterpreted what both Dan
    > and I said and then used that to set us up to
    > defend something neither of us said. We did not say
    > that you shouldn't be allowed to profit from their
    > works. If you think we said that explicitly somewhere,
    > you are wrong. Please point that out.

    What you said was that intellectual property is not 'property.' Put a little more precisely, you have denied that a creator, thinker, artist, inventor, etc., should have legally cognizable and enforceable rights to ideas. Again, if you concede that it is socially useful to grant intellectual workers rights in their work product, we can agree and the discussion will be at an end.

    > What we said, quite clearly, is that creators
    > should benefit from their works in using those works
    > to make other, scarce, goods more valuable and
    > selling those scarce goods.

    ... by the express mechanism of denying the ability to protect their property interests from misappropriation by others. Yes, this is quite clear, and unconscionable.

    > That's exactly the examples that Dan (and I)
    > have produced.

    Quite selective. You can always come up with exceptions. What about the general rule?

    > But we never said they cannot derive a return from
    > their work. ... We're saying they make money in
    > a DIFFERENT way than by using a gov't granted monopoly.

    ... i.e., by being denied the exclusive right to use their work in the way they think best. You either grant them exclusive rights, or you don't. If you don't grant them exclusive rights, then you have just opened the door for others, who had no part in the creative activity, to profit from their labor. In a word, this is called theft, just as if I robbed you at gunpoint -- I am taking money that you worked to earn and that I did not work to earn.

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

    > Nor have we suggested it is. Again, we have never,
    > not once, said it is okay to infringe.

    No, all you said is that the work isn't 'property.' If ideas are not 'property' then they can be used by anyone for any purpose. That is, you produce Grisham's novels, or the Beatles songs, or Microsoft's operating system, and you don't owe a dime, not even a cent, to those who labored to produce the product. You didn't ~suggest~ it, you made it explicit!

    > First of all, we have never said that it is okay to
    > take something without paying for it if the creator
    > did not give permission for it, so you're barking up
    > the wrong tree (again).

    Okay, then it ~is~ property, and you were wrong when you said that it wasn't.

    > But, even if that does happen, it is not theft.

    No? Funny, people go to jail all the time for 'stealing' intellectual property. In my city a few months ago, a couple of dozen people were sentenced in federal court - they were caught in a sting selling counterfeit goods, including DVDs, CDs, luggage and handbags, and a host of other goods. If it's theft to manufacture a CD and sell it as a physical object (without paying the copyholder for the rights) why is it not a crime to do the same over a network by little electronic bits?

    > Other than reality, of course. So far, you have shown
    > that you do not understand economics, you do
    > not understand what we have said and you do not
    > understand the law.

    That's a laugh. You have said that owners can dictate the value of their property and that markets set prices, and other assorted nonsense.

    > How much further a hole would you like to dig?

    You seem to be in the hole, not me.

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