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), 6 Mar 2008 @ 7:20pm

    Re: Your blog post

    This premise is completely wrong. Ideas *are* scarce, in that like rubies or diamonds, you can't just pick them up anywhere.

    You are confused. Ideas, once created, are not scarce. They are infinitely available. I find it amusing (and troublesome, actually) that you later claim that Jefferson agrees with you when clearly he does not. I quote:

    "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."

    If we wish finders of gems to show them to us and not simply keep them to themselves, then we must, as a society, agree that when shown the gem, we will not take it.

    No one is "taking" anything. They are reproducing it, spreading it, making it better, making it more valuable and expanding the overall welfare. Taking implies that someone has lost it. That is not true with an idea. You are incorrect.

    For yes, *that* gem, once taken, can be enjoyed by everyone, but the *next* gem found will not be so generously displayed.

    This, too, is incorrect. Please look at the research of Eric Schiff. Or Petra Moser. Or David Levine. Or Michele Boldrin. Or many, many others. They all found the same thing. A lack of intellectual property law does not stifle new creations. In fact, it often increases the pace of them, because the innovations are designed to create products in the market that can be sold, not for the sake of hoarding intellectual property.

    Factually, you are wrong.

    Instead, the bitter experience of having had one's *property* taken (with whatever set of excuses) will have taught the finder not to allow *that* to happen again.

    It is not property, and it is not taken. You are incorrect again. Instead, it is an idea that is shared and spread and made better.

    If you understand the basic economics, then you will recognize that the creator of that idea is likely to be BETTER OFF the more the idea is spread and the more it is improved on. If you understand the economics you don't, as the "finder" work to prevent it from happening again -- you TRY to make it happen again and again and again and again, because you recognize that it boosts your reputation and in doing so boosts your ability to influence, to change and to make money as well.

    In this way, the fertile ground, having been demeaned in value by thieves, becomes non-fertile, non-producing ground from the perspective of the public.

    Quite the opposite. Historically, the evidence shows otherwise. The more an idea is shared and spread and refined, the MORE valuable, the MORE fertile, the MORE productive it becomes. It is in the limiting, the hindering, the hiding of ideas that shrinks a market.

    This is why we should (a) respect intellectual property, which is to say, not take it without satisfactory recompense to the author, and (b) ensure that said recompense is sufficient as to encourage the finder of that gem (the author, artist, etc.) to go back to the mine that is exclusively theirs and in which no one else can search (their own mind) and excavate for additional gems.

    This is based on the extremely faulty notion that the REWARD for intellectual endeavors comes in the direct sale of the output of those intellectual endeavors. That is simply not so. If that "said recompense" is not necessary and hinders further innovations by creating a monopoly, that does much more damage to innovation and does much more damage to the market for the individual's work.

    For a perfect example, look no further than Giuseppe Verdi who lived in a time both with and without copyright. When there was no copyright, he wrote much, much more. Why? Because to make a living he had to continue to produce. Yet once copyright was in place, he could rest on his laurels and sit back and collect royalties. This is the opposite of your prediction. Yet, time and time again we see the same thing. Again, look at the research I have pointed you to and you will find that your assumptions are incorrect and have been proven incorrect time and time again.

    The value of IP to the producer is in the respect and compensation given the producer: It is their property, unquestionably, until or unless we can convince them that in relinquishing it to us to enjoy the fruits of, we will compensate them in such a manner as to ensure that they feel the process was worth doing.

    It is not property. Again, please reread the Jefferson quote above.

    In compensating for this property, we are saying, please, go back to the source and uncover more of this worthwhile matter.

    Again, the false assumption that the only way to make money is in direct payment for the idea (not property). This is false. It has always been false.

    Contrariwise, when we take it and walk away, muttering contentiously about how "information wants to be free", we are telling the producer that said matter has no value *for them*, and the odds of them doing the *work* of producing more for us drop precipitously.

    Again, this is false. Look at the research of Eric Schiff.

    He looked at countries that got rid of their patent system, and found it INCREASED innovation because there was MORE competition in the marketplace. That is companies focused on making more goods for the market, rather than focusing just on patenting things and not having to compete in the market.

    Look at the history of the steam engine -- which only grew the market AFTER the patents expired, because James Watt made it prohibitively expensive to use, and no innovation could occur until the patents were gone.

    Look at the research of Petra Moser, who found that countries without patent systems innovate just as much, if not more, than those with patent systems.

    It is in the continuous encouragement of production of such matters that benefits to the arts and sciences accrue; I would say, having read all three of your blog posts, that it was clear that Jefferson, for instance, understood this perfectly, and *that* is why the issue is enshrined in the constitution. It is not at all clear that you understand it.

    I would ask that you go back and read more closely. Jefferson was quite clear that these were not property rights. They were monopolies that should only be granted in the rarest of circumstances.

    I am afraid that you believe some very faulty things -- that are certainly believed by many -- but which have no basis in reality. The evidence, basic economics and a little common sense all show that you are incorrect.

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