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), 10 Mar 2008 @ 7:38pm

    Re: Re: Re: : Re: It IS TOO Intellectual Property

    My point is that it is fair, just, moral, and socially useful to preserve to the creators of intellectual property the rights to use, sell, exchange, or give away their property. You claim that this is unfair, unjust, immoral, and socially damaging, at least implicitly by your denial that IP constitutes property.

    Not at all. It has nothing to do with fairness, morality or justice. It has to do with FUNDAMENTAL ECONOMICS, a subject you have made clear you have no knowledge of and no interest in learning about.

    What we have said is that creators would be better off by recognizing that they need not use IP rights -- while pointing out the vast differences between infinite goods and scarce goods. In doing so, we point out that the very core reasons that the concept of property exists (to deal with the allocation of scarce resources) does not apply to infinite goods.

    I am repeating myself now.

    I don't feel the need to repeat any of my points. They are persuasive, and nothing you have written contradicts them in the slightest.

    Other than the fact that you keep stating that we have said stuff we have not, and whenever we point out factual evidence to the contrary of your points (such as with authors and designers) you simply ignore it. Also, when we point out your own ignorance (saying that free decreases demand) you also ignore that. It's one thing to be ignorant, it's another altogether to ignore it when people try to educate you.

    Your statement that intellectual property is not property is at odds with reality. You are living in a fantasy world of your own making. I suggest you wake up and smell the coffee

    It is not at odds with reality. Property has certain characteristics, including scarcity, rivalry, excludability, etc. that infinite goods simply do not have. They are different in very important ways. If you honestly believe they are the same then why do you not pay "property taxes" on your IP? And why does your regular property not go into the public domain after 20 years?

    Even you must admit that there are clear differences between "property" and patents and copyrights.

    Reality is that they are different. Now, once you come around to admitting that, you can discuss what that means in terms of how the laws should be set up. But to claim they are one and the same isn't just wrong, it's willful ignorance. No sane economists would agree with you.

    You are free to argue for the abolition of property rights in intellectual property, which apparently is exactly what you want to do. However, you cannot elevate a falsehood to the truth by any amount of words

    The only one expressing a falsehood is you. And I am not calling for the "abolition" of copyright or patents. I am saying that the holders of those rights will eventually recognize that they're better off without them -- at which point they will fade away, as they are simply not needed.

    Once again, you continue to put false words in mine and Dan's mouths. Please refrain from doing so in the future.

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