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 @ 11:40pm

    Re: Techdirt

    Having only recently learned about your site, I am still attempting to determine if there is any aspect of "IP" law that you personally embrace. Your comments suggest there is precious little of the law you support, but then again I have seen only a small fraction of your articles.

    I believe very strongly in the free market and the idea that government intervention is only necessary in cases of market failure. I believe that as you look at the research, you will realize that there is precious little proof of any market failure that requires patent or copyright law. However, I am open to the idea that someone *could* show a situation of market failure under which a monopoly would make sense. But I believe, as did Madison and Jefferson, that it should be under the rarest of circumstances, and only when evidence is shown of the market failure -- rather than as an open system where the market failure is merely assumed.

    The problem is that so few people recognize that there are both benefits and downsides to patents and copyrights -- and the more evidence you look at, it becomes clear that the downsides almost always outweigh the benefits.

    If I may ask a simple question that obviously pertains to this website, do you support the legal fact that it is protected under copyright law? If so, why? If not, why?


    Yes, I recognize that under the law, this site is protected by copyright -- though I have made it quite clear that I will actively ignore that fact and anyone is free to do with the content as they wish, with the recognition that it's either likely to help me or make the person using the content look foolish. You can read more about my feelings on this here:

    http://www.techdirt.com/article.php?sid=20070412/183135#c612

    It is regrettable that so much of the discussion concerning usage of the term "IP" evidences a lack of a firm understanding about what each of these areas of law comprise, the nature of rights associated with each, the federal and state sources for the enactment of such rights, how these rights interrelate, and the various policies that underlie each.

    Actually, what I find most regrettable is the suggestion that this is a legal debate at all. It is not. It is an economic debate. The point is what is best for society overall, and that has little to do with the legalities involved. For some reason, though, there's this idea that only lawyers should be able to discuss (or make the laws!) related to intellectual property, rather than those who actually understand the economic impact of those laws.

    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.

    Actually, as I point out above, I find the term monopolies vastly more accurate than intellectual property. Can you explain why "monopoly" is inaccurate. It is 100% accurate. It is a gov't granted monopoly. Even Jefferson and Madison were honest enough to admit that. You're one of the first people I've ever seen to even debate the point, so I'm curious as to why you believe they are not monopoly rights.

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