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), 9 Mar 2008 @ 4:00pm

    Re: Re: It IS TO Intellectual Property

    Charles. You are simply incorrect. You are wrong on the difference between theft and infringement, as even the Supreme Court has noted. I can't believe I need to repeat this, as I just pointed it out a few comments ago, but even the Supreme Court recognizes the difference. Infringement is not theft. Period.

    A performer has the EXCLUSIVE right to control his performance, and if you violate his right by distributing his performance without his permission you are liable for the consequences of your actions.

    Yes, for infringement. No one denies this point.

    But you totally ignored Dan's actual point. He said that that exclusive right was NOT the only way that the IP holder could make money. You continue to insist it is. And you are wrong.

    I think you are referring to patents. Copyright was never meant to encourage innovation.

    Again, you are wrong. Both patents and copyrights are to "promote the progress." They both stem from the same constitutional clause, and both are focused on innovation. But, nice try rewriting history.

    In each of these cases, the freebie was connected with some perceived benefit for the owner, which wasn't the question in the CONTEXT in which it was asked. The CONTEXT is that IP isn't property, that is, artists, inventors, and brandholders shouldn't be allowed to profit from their work -- this was pretty explicit in this thread. Again, show how the producers can benefit from their work if they cannot derive a return from their work. This is the question.

    You seem to have totally misinterpreted what both Dan and I said and then used that to set us up to defend something neither of us said. We did not say that you shouldn't be allowed to profit from their works. If you think we said that explicitly somewhere, you are wrong. Please point that out.

    What we said, quite clearly, is that creators should benefit from their works in using those works to make other, scarce, goods more valuable and selling those scarce goods.

    That's exactly the examples that Dan (and I) have produced.

    For you to then say they don't count, when they show exactly what we say has me questioning what you think we're saying.

    Again, show how the producers can benefit from their work if they cannot derive a return from their work.

    But we never said they cannot derive a return from their work. If you reduce your statement above down to the tautology that you're stating it's: "Show how someone can make money if they can't make money." The problem is we never said they can't make money. We're saying they make money in a DIFFERENT way than by using a gov't granted monopoly.

    This is not difficult.

    No. I'm just pointing out that intellectual workers are entitled to earn a living from their work, just like assembly line workers.

    Which is what we have said. Why do you think we have said something different?

    Giving away stuff can create markets, this was demonstrated by the radio and TV industries, even by the razor blade and cigarette manufactures 100 years ago.

    Right. That supports our point.

    If someone can come up with a successful business model which is new, and make money from it, that's great.

    Right. And all we've done is explain how that business model works.

    Stealing someone else's property isn't a new business model.

    Nor have we suggested it is. Again, we have never, not once, said it is okay to infringe. Why you continue to insist that we have only makes you look like you cannot comprehend basic english.

    Even if the product (e.g. a digital download) cost nothing to make and is a virtually infinite supply, if you take something without paying for it, that is, it's not being given away, you have committed theft, and you belong in jail.

    First of all, we have never said that it is okay to take something without paying for it if the creator did not give permission for it, so you're barking up the wrong tree (again).

    But, even if that does happen, it is not theft. It is infringement. And you do not belong in jail for it, because it is a civil offense, meaning you can be fined, but not jailed.

    But thanks for playing.

    No amount of rationalization on your part can change this simple fact.

    Other than reality, of course. So far, you have shown that you do not understand economics, you do not understand what we have said and you do not understand the law.

    How much further a hole would you like to dig?

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