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
    Dave Kelsen, 7 Mar 2008 @ 7:09am

    Re: Re: Your blog post

    Mike, you are right; ideas are not at all scarce. What Ben should have referenced is worthwhile ideas. You know, the kind you want to copy.

    I disagree that taking implies loss, but it's a fair interpretation. How about receiving? The fact is that whether the originator loses the product itself or not, the receiver receives it.

    The reason all of this is being debated is because people want to believe that it's OK to 'receive' the fruit of someone else's labor without regard for the wishes of the originator.

    It seems to me that someone who has an idea and sets it into motion, creating something new, should be able to determine what happens with it. That's the notion enshrined in the Constitution, and for good reason. If the creator decides it should be shared at large with at no cost to receivers, he should be able to do that (see FOSS et al.) If the creator wants to do otherwise with what he or she has created, that should be OK too. If he wants to offer it for recompense, he should be able to do that. Even if all the convoluted hypotheses expounded here and elsewhere about how to profit were correct, that choice should belong to the creator. Even if he could have made more money with a different distribution model, or helped more people, or gotten more recognition, or whatever. What you people refuse to acknowledge is the value of the act of creation, and the consequent fact of ownership. You don't have to call it property, or believe in it, but it exists.

    If created things have no more value than what you ascribe to them, why not make your own music/video/monologue/lip snaffler and give it away to enhance the quality and value of other people's lives? If I come up with a cure for cancer, a lot of people might want it - but I don't owe it to them. It's just another idea; let them have their own. After all, ideas are not at all scarce.

    For the record:

    1.) I could no more come up with a cure for cancer than I could leap to the moon via my own leg power.

    2.) I firmly believe that if I could and did come up with a cure for cancer, I would share it freely.

    3.) That sharing would be my choice to make.

    RFT!!!
    Dave Kelsen

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