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
    Anonymous Coward, 6 Mar 2008 @ 10:51pm

    Re: Techdirt

    One request, if I may. Might you limit to some degree the constant references to these rights as "monopolies"? That word is totally inaccurate and creates an impression in the minds of many unfamiliar with the vagaries of the law that these laws are somehow bad. Granted, there are some "bad apples" who give the law a bad name, but they are the exception to the rule and considered as such by the vast majority of legal practitioners.

    Exception to the rule? Inaccurate? Kind sir, you must be living under a rock to believe these things. Take a look around you!

    We have a system here where it is a race to patent the most widly useable thing possible so that you can charge large sums of money in order to "let" others use it.

    You have a system where the entire idea of spreading knowledge in a standard format is only allowed if you pay a for profit business liscensing fees!

    You have a system where it is better for someone to steal from a store or vandalize property (real property) than to use or expand on an idea!

    Everything is being locked down. The consequences are already affect the US economy, which was already at risk. Things are starting to stagnate.

    Show me one single thing that has benefited society because of copyright/patent law in the last two decades.

    I haven't seen anything "promote the sciences and useful arts" recently. Instead, a good idea comes along and no one is allowed to use it. No one is allowed to improve it, or turn a good idea in an unworkable form into something useful.

    Nothing good has come out of so-called "IP" laws (like Mike I do not consider Trademarks a part of that). Hell, the people who wrote the damn thing into the Constitution hate the very idea, and several (such as Ben Franklin) gave their inventions into public domain.


    So I ask you kind sir, please step back and take a look at the whole picture before you zoom in to one tiny aspect of it. You very obviously are not seeing the whole point.

    When you have a legal culture that encourages patents on stuff like this:

    "A video game and game system incorporating a game character’s sanity level that is affected by occurrences in the game such as encountering a game creature or gruesome situation. A character’s sanity level is modified by an amount determined based on a character reaction to the occurrence such as taking a rest or slowing game progress and/or an amount of character preparation. That is, if a character is prepared for the particular occurrence, the occurrence may have little or no affect on the character’s sanity level. As the character’s sanity level decreases, game play is effected such as by controlling game effects, audio effects, creating hallucinations and the like. In this context. the same game can be played differently each time it is played." - Nintendo

    You have a serious problem. Contrary to your belief, these are not 'one-off' or 'rare' patent applications. Overly broad and quite often obvious ideas are not only being submitted, but an ungoodly ammount of them are being accepted.

    Shit needs to change, and before too much more damage is done. Many countries have laws regulating not only monopolies but against cartels. How you can describe the RIAA, MPAA, and BSA as anything but an effective cartel of their respective clients is beyond me. Big business has been slowly destroying the general welfare in the name of the buck for years, and the pace is accelerating.

    Stop turning a blind eye. Wake up and face the reality of what is happening. In the end there is likely one result if the history of the United States has any relevance: these out moded, anti-public, just down right stupid laws will be abolished. The only downside is it will probably take more than a decade.

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