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
    Alsee, 6 Mar 2008 @ 11:51pm

    >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.

    The very author of the Constitution defined them as monopolies. And he too had the impression in his mind that monopoly carried a bad connotation and that exactly these sorts of laws carried an inherently bad aspect, and that the danger was very great that the inherent evil in such laws could easily overwhelm any intended good.

    "But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good." -- James Madison.

    I'm with Thomas Jefferson and James Madison. I agree that copyright and patent and similar laws are permissible. Iagree that category of laws can potentially be useful. I agree that category of laws can potentially be beneficial in promoting people to create and supply us with new valuable writings and discoveries. I agree that they are government created government imposed artificial monopolies, and that such monopolies can potentially be useful and beneficial. I I agree, as Thomas Jefferson so eloquently explained, that writings and discoveries are not property. I agree the danger is very great that for such monopolies to cause more harm than good.

    Such laws need to be extremely carefully considered, with explicit careful consideration that they sole purpose is the public benefit - as is required by the constitution. Careful consideration of how and why a law is to benefit the general public. Explicit acknowledgment that it is an artificial government imposed monopoly. Explicit acknowledgment that any such law carries inherent harms along with it. Explicit acknowledgment and careful consideration of the fact that such harms may easily exceed all of the benefits and good intentions of such a law.

    Yes, I fully understand the arguments and motivation of copyright etc. to encourage to create stuff. I agree that it can be valid and useful and beneficial. However on the other side of this issue there are people who have not been grasping the subject and the issues involved. People who simply chant Property Property Property and Thief Thief Thief. People who notice that existing copyright and related laws do not match property law and think there is some mistake or flaw in the law, people unhelpfully trying to "fix" it into property law. People demanding more and more extreme laws based on this invalid Absolute Natural Right Property that trumps all logic and reason... the mindset "It is property and we must FORCE it to be property, and anyone who dares question that is an evil commie anarchist".

    Our current law on the subject has already become an abominable mess in many respects, and we just have the Property crowd endlessly demanding to ratchet it up even further and more extreme. And our politicians have been catering to powerful industry lobbyists, catering to massive campaign donations, buying into the Property chant, and ignoring the very foundation of such law. Ignoring the largely oblivious public and their lack of powerful lobby force and lack of major money gifts to the politicians on the issue.

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