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
    Charles Carter, 9 Mar 2008 @ 11:11am

    : Re: Re: It IS TO Intellectual Property

    > And what does the owner base his asking price on?
    > Unless he's an idiot, he checks the housing market.

    Hopefully there is a rational relationship between cost, price (market value), and perceived value. The reason that we have a housing glut (i.e., houses not selling) is because the buyers are not willing to pay the price set by the sellers. When the price falls, buyers will buy. Of course, the sellers may not recover their costs, but that's a different issue. It's certainly possible to sink more cost into a product than the market value justifies.

    > Infringement is not theft.

    It's not? You have a funny (mis)conception of theft. Infringement is appropriation of the commercial value of something against the rights of the owner. If I publish a book and you make copies and sell them without paying me a royalty, that's theft.

    > How does giving away the digital form of the
    > recordings help them (or their estates for the
    > dead Beatles?)

    You must be kidding?! The estates of the dead stand in the same position as the living. On my death, the property that I owned in life will be owned by my estate.

    > First, why do the estates of the deceased Beatles
    > deserve to benefit financially from work they did
    > not create?

    It's called inheritance. The heirs of a person are entitled to his estate. Seems like you should know this, but maybe not.

    > You've completely misunderstood his points. Just
    > because something is free does not mean it has no
    > value.

    Confusion of terms. Do you speak of 'value' meaning the value of the item to the owner? Or the 'value' of the item according to the market? These are two different concepts. If an item is 'free' in the sense that the price is zero, it has no value to the owner but may have great value to those who wish to acquire it.

    > Ideas are valuable whether you had to pay for them or not.

    Confusion of terms. If they are 'free' they have (by definition) zero value.

    > You are automatically assuming that patents and
    > copyrights are the only source of income for an
    > artist, and you're wrong.

    What about a manufacturer that derives its sole income from the manufacture of a patented item, or an owner that derives his sole income from the license of patents or copyrighted works? In some cases IP is not the only source of income, but in other cases it is.

    >> What if the musician has disbanded, or disabled,
    >> or dead, or otherwise not performing? Suppose
    >> it's a reproduction of a one-of-a-kind, such
    >> as a painting or a sculpture? You have turned
    >> your original essay into a provocation for piracy,
    >> which I find absolutely reprehensible.

    > This is simply a laughable argument. If the musician
    > has either been disabled or decided to stop
    > creating music, then obviously he would find
    > another way to support himself. They could still
    > use their music to assist in promoting their
    > new endeavors. And while this is a bit
    > morbid....if they're dead they don't need the money
    > - the purpose of copyright is not to create a
    > welfare system for others.

    What's laughable about a person receiving income as a result of his work? Once a composer is finished with a composotion or an inventor is finished with his invention, why shouldn't they be able to derive an income from their work? Why should others who had absolutely no hand in the composition or invention profit at the expense of the composer and inventor?

    >> Suppose you tell your employer that you are willing
    >> to work for free, that you expect no return for
    >> your efforts, because that is EXACTLY the model you
    >> have just described.

    > You have a stunningly complete lack of comprehension.

    Thank you.

    > The work is a scarce resource, but the end result may
    > or may not be. Therefore, you deserve to be paid
    > for performing the work. The price of the product
    > produced by the work is determined by the market.
    > What Mike is describing is the basic market force
    > of an infinitely available product's price naturally
    > going to zero.

    And I am saying that it is right and just for the producer to control the availability of the product in order to derive a return for his effort. Why doesn't John Grisham have an infinite number of copies of 'The Broker' printed and give them away, or allow the PDF to be freely downloaded? (As I have previously noted that Seibel and Lamkins have done.) It's because John Grisham writes for a living, he produces novels for his livlihood, and your suggestion would deprive him of his living (and probably of the world of his yarns).

    > He's also saying that instead of trying to fight
    > that phenomena by introducing artificial controls,
    > it should be embraced and used to increase the
    > sales of scarce resources.

    In the case of John Grisham, what would that be? In the case of an inventor, what would that be? In the case of a designer with a valuable brand, what would that be?

    In some cases, giving away the product will create a demand for another product, as the McAfee (virus updates) or MySQL (paid support) business models. In some cases, it won't, as in the case of a writer (John Grisham) or a designer (Goeffery Beane) or an inventor.

    I find the suggestion that producers of intellectual goods be denied the ability to earn from their labor incomprehensible. Show me how holders of copyrights, patents, and trademarks can benefit from the free distribution of their work, and I might agree with you. But you can't, so I won't.

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