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
    Crosbie Fitch (profile), 14 Mar 2008 @ 2:51am

    Re: Re: Benefacio

    Mike,

    The baby you threw out is intellectual property, as natural a concept as material property, when you correctly threw out the unnatural and unethical practice of published works being considered the property of those privileged by copyright and patent.

    All you have to do to understand my position is to recognise that IP behaves precisely like material property once copyright and patent have been abolished. Property doesn't need to be tangible to behave as property - this is why it's so useful to have 'material' vs 'intellectual' when distinguishing between the two forms.

    Also, we've got to put to rest this crazy notion that the primary motivation and intent of thieves is to deprive owners of the property they steal from them - that if the owner remains unwitting as to their loss (appears not to be deprived) that no theft can therefore have occurred. Theft is to take someone's private property without the owner's authorisation - incentivised by having its benefit without equitable exchange.

    All the wrong with IP is caused by copyright and patent, which confers property-like privileges over someone else's property.

    Copyright & patent also create another crazy notion, that if someone owns an idea, that they therefore own all the other instances of a similar idea. If you and I have an indistinguishably similar idea, we don't own each other's ideas. That notion is created by a race to the patent office. In nature, we both own our own ideas - without conflict, without either of us even thinking that they have a claim to the idea whoever thinks of it.

    I call the failure to realise that when two people have an indistinguishably similar idea that there are two ideas that each own (rather than one), copy-blindness. It's caused by being brainwshed by a copyright/patent culture.

    http://www.digitalproductions.co.uk/index.php?id=65

    If I sell you a copy of my idea, we both own an indistinguishably similar idea. They do not mystically collapse into a single entity, a single property, just because you can't tell the difference between them. That illusion is created by patent that says a patent holder automatically owns all ideas indistinguishably similar to his own.

    It's one of those paradigm shifting moments of enlightenment when you have it. Unfortunately, it's one of those 'Sun does not go round the Earth' concepts where the simplicity of the explanation does not make the shift any easier - given the sun plainly does go round the earth for all to see.

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