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), 11 Mar 2008 @ 10:55pm

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

    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.

    Again, the moral question is a separate one, which I'll discuss below, since you bring it up again later. And I disagree with the idea that it reinforces the legal side. It reinforces *some* aspect of it, but in an incorrect and unfair way. Is there fair use for regular property? Nope. So "reinforcing" that it's just like property actually gives people the wrong idea, and tends to limit their rights. It also reinforces the idea that IP should be infinite (as is property). Do you see why this might be a problem? Even you are complaining about the length of copyright...

    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.

    It is a legal concept only in that the laws were designed to deal with the economics. Laws don't exist in a vacuum.
    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.

    Then you clearly have not read the economic research I discussed. If there is demand, then a model for the creation will be created. What you say above assumes that the only reason to create fire is to gain monetary return from it. There are other benefits too, you recognize, and most of those other benefits are not harmed by sharing the fire.

    The research of Eric Schiff is particularly damning to the idea that a lack of monopoly protections leads to disincentives to create. Other models exist, and in a dynamic world where constant innovation is expected, it is better to not protect ideas and have people compete to build better and better products.

    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.

    Ah, so now we are back to morality. I am not against discussing the moral arguments, but my question remains the same: if the economics shows that in a situation without IP rights, everyone ends up being better off, then doesn't the moral question go away?

    How could it possibly be moral to set up a situation where everyone is worse off?

    If you want to go down the path of claiming that IP is just and moral I can give you plenty of examples where it clearly is not. What you quickly learn is that it's much better to let the market sort things out and deal with the EXCEPTIONS (if there are any) to fix the morality, rather than trying to craft a system that declares what is moral and just, and ignores the unintended consequences that lead to more damage for nearly everyone.

    So, I have trouble understanding the morality claim because all of the evidence suggests a world in which nearly everyone is worse off with IP rights. That doesn't seem very moral to me.

    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.

    We clearly define abuse of the system differently.

    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.

    If you can prove a case where a monopoly right is needed for a business to survive, I'd like to see it. As I said, in such a case, I am not against patent rights. The problem is that I have yet to see such a case. You make a big assumption in claiming that there are businesses that need monopoly rights to survive.

    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".

    I have pointed you to a lot of research on the matter. Your failure to read it should not be held as me not pointing you to it.

    I am sorry if you find my answers here to broad and generalized. For nearly a dozen years I've been outlining these arguments in great detail. It's rather tiresome to have to repeat the details via keyboard when you could do a search and find most of the "meat". Look around.

    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.

    Again, look around. I have pointed to countless research to explain why on a macro level, examples to explain why on a micro level, and explained the overall theory in great detail.

    The simple argument is this, and I'll let you do some Google searches of this site to get the rest of it:

    Economic growth is caused by non-rivalrous, non-excludable goods (see the research of Paul Romer to understand this). Economic growth, by its nature, offers more opportunities to profit. Limiting economic growth by artificially limiting non-rivalrous and non-excludable goods is effectively preventing economic growth. It is, quite literally, limiting the available resource pool of production.

    Thus, if you understand the economics, and can understand how freeing up that resource will grow the economy, you can position yourself to monetize the result in a way that far exceeds the possibility if you keep the resource artificially scarce (this is pretty basic math here, but you can work out the equation if you want).

    As more and more people recognize these simple equations, and position themselves accordingly, we will see more economic growth, and those that succeed will increasingly decrease their reliance on artificial scarcity in order to encourage more such growth. Those that continue to rely on artificial scarcities will find their own markets shrink, as customers move on to those that embrace the opportunities abundance provide.

    Eventually, the market sorts itself out, and the need for artificial scarcity goes away.

    Cogent enough for you?

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