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
    MLS, 11 Mar 2008 @ 10:20pm

    Re: Re: Re: Re: Re: Re: It IS TOO Intellectual Pro

    "As I thought I made clear (apparently not...) my problem with using the term "property" is that it leads many to assume that it should be treated like tangible property. That leads to simple, but totally incorrect statements like "downloading a song is no different than stealing a CD.""

    Perhaps it does lead some to assume it should be treated like tangible property, but then again the term "property" does have the beneficial effect of reinforcing in the minds of malfeasors that taking something without paying for it is morally and legally wrong, whether or not the property is tangible or intangible. As an aside, property is not an economic concept...it is a legal concept involving various rights recognized by law and enforceable in a court of law. Perhaps you should consider using words such as "goods", "articles of manufacture", etc. in lieu of the legal and at times amorphous concept of "property.

    "Then you do not understand what "scarce" means. I am not talking about one idea as compared to others. I am talking about the question of whether or not an idea is rivalrous and excludable. It is not."

    I am aware of what scarce means. Likewise, I am aware of rivalrous versus non-rivalrous. But to say that one is excludable and the other is not is in my view much too broad of a generalization. Yes, I am well aware of the oft used example that lighting a branch from an existing fire does not deny the originator of the fire from its use. At the same time, however, it is also fair to say that under this example the use from but a single fire and with no consequences for doing so strongly suggests a disincentive for the later user to not apply himself to the creation of one himself. In the latter circumstance there would now be two, which it seems hard to argue does provide a benefit to society.

    Dare I say it, but there are times when what is "good" and "optimal" under economic theory does not necessarily relect that which is "just" and "right" as matters of public policy. I am fully cognizant that there do exist the holders of "IP" who can rightfully be viewed as engaging in abusive behavior that benefits no one save their business bottom lines. Of course, these are the ones who make the news and lead to discussions such as this. At the same time, however, there are rights holders who do not abuse the system and do use such rights in a manner that enhances their financial return while at the same time providing a real and substantial benefit to consumers without plunder and pillaging. These, for obvious reasons, are not deemed newsworthy and, hence, never enter into any discussions.

    I have stated it before and it bears repeating. The vast majority of innovation (I am purposely staying away from copyrights given Congress' proclivity to make them ever expansive) never even enters into the "patent system", and yet somehow those companies manage to survive quite nicely. Others pursue patents even though in many cases they are unnecessary for achieving business objectives. Extrapolating this, however, to all forms of commerce disserves those businesses that operate within market segments where the ability to exert some measure of control over how their work product is needed if those businesses are to survive. Economic analysis may say the heck with them because greater economic good is achieved by withholding exclusionary rights, but it useful to relect on whether or not this is good public policy.

    You have repeatedly challenged the notion that our patent laws encourage early disclosure. You have likewise repeatedly challenged the notion that our patent laws serve to encourage others to create their own solutions. To date your arguments in support of your position have been so broad and generalized as to defy any attempt to ascertain their merits and provide a thoughful rejoinder. On these points I will have to reserve judgement until such time as I see some "meat on dem' bones".

    On a final note, I am still waiting to read a cogent argument why you assert that IP rights are an anachronism that will in time disappear when businesses realize they can proceed with having any need to rely on them.

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