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
    DanC, 10 Mar 2008 @ 9:03am

    Re: Re: Re: It IS TOO Intellectual Property

    People will not pay for a product they could get for free.

    Demonstratively false. Radiohead allowed for people to pay whatever they wanted for the album, and plenty of people chose to pay. Bottled water is a thriving industry, and there are plenty of people who get their water for free. Various consumer tests have shown that most people can't taste the difference, yet they continue to buy it. People are more than willing to pay for perceived value.

    That is not the position you took at the beginning, when you claimed that IP is not property.

    This is incorrect. Mike stated, quite clearly, that IP is not actually property but a set of rights. You continue to incorrectly equate this to an advocation of infringement, and the removal of a content producer to make money. Furthermore, he has not made an argument to compel content creators to do anything. Again, quite clearly, he has stated that it makes business sense to offer infinitely available goods at their natural price of $0 in order to drive customers to scarce resources.

    It was a very small book -- it contained arrangements of tunes, all of which were more than 150 years old. I derived some small income from this book.

    Correct me if I'm wrong, but didn't you just say people wouldn't pay for free things? If the tunes are over 150 years old, they're in the public domain, making them free to the public. Even beyond your book, various publishers make money putting out books that are widely available for free, including the Bible.

    Call it infringement if you want, but the prosecuting attorney called it theft. I will defer to the prosecuting attorney.

    I have infringed their rights, but let's cut the BS and call it what it is: theft.

    As I previously brought to your attention, the Supreme Court of the United States understands the difference between infringement and theft back in 1985. You can defer to your prosecuting attorney, but I think the Supreme Court has a little more legal authority.

    Okay. The Levis red tab is an 'infinite supply.' Anyone and everyone can make jeans with a red tab that says 'Levis.'

    Trademark exists to protect consumers, while copyrights and patents exist to promote innovation. The Levi Strauss trademark is not a product, which invalidates your example.

    This is NOT true in other cases, as my illustrations of Levis jeans and Grisham novels.

    So you have evaluated every business model that Grisham can use, and determined that every single one of them relies on copyright in order for him to earn a living? That seems particularly presumptuous of you. Mike has pointed out various examples of how business models other than the current ones can allow a creator to benefit regardless of copyright.

    If an idea isn't property, it isn't protected, and anyone can use it at will

    This seems to be the crux of the matter. An idea is not property, and cannot be protected. You can, however, protect an expression of an idea with a copyright or patent. A copyright or patent gives you monopoly rights to that expression.

    If someone figures out a way to generate revenue by giving stuff away, everyone else will follow suit.

    They have, and they're starting to. Ignoring the examples we've provided doesn't mean it isn't happening.

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