Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

by on November 21, 2006 · 58 comments

One of the most important lessons of politics in recent years is that language matters. The words we use to describe the policies we advocate have a profound effect on how we think about them. Our choice of language has powerful effects in framing how we think about a subject. Sometimes, this effect can be benign or even beneficial. As a libertarian, I like the political implications of the terms “death tax” and “undocumented worker.” I’m not so crazy about the terms “gun control” and “war on terrorism.”

I’ve become convinced that the phrase “intellectual property” is a particularly potent bit of framing. And, in my opinion, it has become a serious obstacle to thinking clearly about the legal regimes of copyrights, patents, trademarks, and trade secrets. There are often debates, on TLF and elsewhere, that are framed in terms of whether we should be “for” or “against” intellectual property. This, it seems to me, completely obscures the real issues in the “intellectual property” debate. No one (even Levine and Boldrin) is in favor of abolishing the trademark system. Likewise, no one is in favor of extending “intellectual property” into every conceivable area of our lives (consider David Friedman’s silly proposal to give people ownership of words). Everyone believes that “intellectual property” is appropriate for some areas of the economy, and inappropriate in others.


In addition to unnecessarily lumping together widely disparate legal regimes, “intellectual property” suggests a misleading analogy to traditional property law. Property rights are an indispensable foundation for a free society because the only alternative is government control over the use of scarce resources. As Hernando de Soto and others have shown, property rights often emerge spontaneously within communities before they are formally recognized by the government. The job of the state in a free society is simply to discover, formalize, and enforce the property arrangements that have already emerged from the peaceful cooperation of individuals in their communities.

In contrast, the patent and copyright monopolies are clearly the artificial creation of states. Copyrights and patents don’t seem to emerge organically from the creative community the way that traditional property rights do. Often, the introduction of the copyright or patent system into a new industry is greeted with hostility. This happened in the railroad industry in the 19th century, and in the software industry in the 1990s.

This means that we have a more difficult job in crafting patent and copyright policies. Libertarians are used to taking traditional property rights as we find them. That works because property rights emerged from a common law regime that was largely concerned with discovering what property arrangements already existed and giving them legal force. (Congress tried repeatedly in the 19th century to allocate property rights from Washington, but squatters largely ignored Congress’s decrees, and as de Soto tells it, Congress finally gave up and recognized the squatters’ claims) In contrast, copyrights and patents were clearly created ex nihilo by Congress. So stating that we should respect intellectual property doesn’t tell us anything useful, because it tells us nothing about how to choose among the many conceivable types of “intellectual property” the state might choose to protect.

Levine and Boldrin understand this problem, and their solution is to use the term “intellectual monopoly” instead. I find this unappealing for two reasons. First, it reinforces the perception that “IP” (or “IM”) is something that one is either for or against. That’s not a problem for them, given that their goal is to abolish patents and copyrights, but as a non-abolitionist, I don’t find it helpful.

Even if I did share their goal of abolishing copyrights and patents, I think that “intellectual monopoly” sounds too much like a term that was made up in response to “intellectual property.” Intellectual property is such an effective frame precisely because it sounds, at first impression, like an ideologically neutral term. If Boldrin and Levine want to counter that influence, they need to come up with a term that sounds equally neutral, but that frames the subject in a way that subtly undermines the concept in the long run. I’m not sure what a term would be, but I’m pretty sure that “intellectual monopoly” ain’t it.

Fortunately, we don’t need a replacement for the term “intellectual property,” because there are already two that will do nicely: “patents” and “copyrights.” Since I decided to stop using the term intellectual property, I’ve been surprised at how rarely it’s actually needed. Most practical policy debates are not about “intellectual property” as such–they’re about either patents or copyrights. Simply replacing “intellectual property” with the appropriate, more specific term, works just fine.

In those rare circumstances where one really is talking about both patents and copyrights, I’ve found that the phrase “patents and copyrights” works just fine. I’ve also found that the place where I most frequently have to type the phrase “patents and copyrights” is in bigthink essays like this. And as I said, I think too much bigthink has been a major obstacles to clear thinking about these issues, so I’d like to mostly avoid those discussions anyway.

So I hope you’ll join me in eschewing the term “intellectual property.” I’ve found that it’s an impediment, rather than a help, in discussing the disparate legal regimes of patents, copyrights, trademarks, and trade secrets. And i think our debates concerning those subjects would be more fruitful if we used language that acknowledges that they are, in fact, four dramatically different subjects, each of which deserves to be discussed on its own terms.

  • Doug Lay

    This is an excellent post, and I’m happy to report that I’ve been avoiding the term “intellectual property” for years, or at least placing it in scare quotes.

    I’d be interested to know if you know of any academic research on the origins of the term and how /when it became predominant in the American legal community. So far the best information I found was a footnote in a paper by Mark Lemley, where he (or a co-researcher) ran Lexis searches for the term on a decade-by-decade basis. The results showed a very small number of uses of the term until the 1970s, followed by hockey-stick growth in the 1980s and 1990s.

  • Doug Lay

    This is an excellent post, and I’m happy to report that I’ve been avoiding the term “intellectual property” for years, or at least placing it in scare quotes.

    I’d be interested to know if you know of any academic research on the origins of the term and how /when it became predominant in the American legal community. So far the best information I found was a footnote in a paper by Mark Lemley, where he (or a co-researcher) ran Lexis searches for the term on a decade-by-decade basis. The results showed a very small number of uses of the term until the 1970s, followed by hockey-stick growth in the 1980s and 1990s.

  • geoff

    I may be misreading you, but you make it sound like David advocates for propertization of language. He does not. In fact he points out how costly that would be and notes that “it would be a very quiet world.”

  • geoff

    I may be misreading you, but you make it sound like David advocates for propertization of language. He does not. In fact he points out how costly that would be and notes that “it would be a very quiet world.”

  • http://www.techliberation.com/ Tim Lee

    Geoff: Right, Friedman wasn’t actually advocating the privatization of language. He was offering it as an example of “property rights” being taken too far. Sorry I wasn’t clear.

  • http://www.techliberation.com/ Tim Lee

    Geoff: Right, Friedman wasn’t actually advocating the privatization of language. He was offering it as an example of “property rights” being taken too far. Sorry I wasn’t clear.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    The problem of IP terminology arises because there is an economic incentive to misrepresent copyright and patents as extending private ownership of published IP into the public domain.

    Intellectual property may be intangible, easily reproduced information on a tangible medium, but it observes all the necessary criteria for private property.

    Until however, it is published, whereupon it observes all the necessary criteria for public property.

    What copyright and patents foolishly and unethically attempt to achieve is the pretence that the publisher retains a proprietary interest and the privilege of control over their published IP.

    So, IP is either private IP, privately owned, or it is public IP, publicly owned.

    Abusive malapropism occurs when private interests attempt to twist the meaning of IP in support of their claim to ownership of public IP.

    Let’s not forget it can work the other way too. Sometimes public interests attempt to demonstrate ownership and entitlement to private IP.

    I wrote more on this here:

    IP is Indeed Property

  • http://www.digitalproductions.co.uk Crosbie Fitch

    The problem of IP terminology arises because there is an economic incentive to misrepresent copyright and patents as extending private ownership of published IP into the public domain.

    Intellectual property may be intangible, easily reproduced information on a tangible medium, but it observes all the necessary criteria for private property.

    Until however, it is published, whereupon it observes all the necessary criteria for public property.

    What copyright and patents foolishly and unethically attempt to achieve is the pretence that the publisher retains a proprietary interest and the privilege of control over their published IP.

    So, IP is either private IP, privately owned, or it is public IP, publicly owned.

    Abusive malapropism occurs when private interests attempt to twist the meaning of IP in support of their claim to ownership of public IP.

    Let’s not forget it can work the other way too. Sometimes public interests attempt to demonstrate ownership and entitlement to private IP.

    I wrote more on this here:

    IP is Indeed Property

  • http://weblog.ipcentral.info/ Noel Le

    First, I don’t know a single person who believes intellectual property is akin to real property. There are some similarities, but the fact that its useful to describe intellectual property w/ examples from real property probably causes more confusion than is necessary.

    Second, look at the theories behind intellectual property to distinqiuish it with real property: tragedy of the commons, prospect theory, the problem of public goods, etc. These have little to do with the basis for real property (w/ the possible exception of prospect theory, but it is an *intellectual property theory* b/c it proposes specific policy recommendaitons for patents).

  • http://weblog.ipcentral.info/ Noel Le

    First, I don’t know a single person who believes intellectual property is akin to real property. There are some similarities, but the fact that its useful to describe intellectual property w/ examples from real property probably causes more confusion than is necessary.

    Second, look at the theories behind intellectual property to distinqiuish it with real property: tragedy of the commons, prospect theory, the problem of public goods, etc. These have little to do with the basis for real property (w/ the possible exception of prospect theory, but it is an *intellectual property theory* b/c it proposes specific policy recommendaitons for patents).

  • http://www.cs.westga.edu/People/LewisBaumstark Lewis Baumstark

    I would be comfortable with the term intellectual property if it were used properly, ie to refer to the ownership of the actual copyright or patent and not to the “ownership” of the work covered by copyright or patent. After all, it is the rights of license that can be transferred, sold, etc, not the work those licenses pertain to. Sadly, current connotations have it as ownership of the work, and those connotations are abused on a daily basis.

  • http://www.cs.westga.edu/People/LewisBaumstark Lewis Baumstark

    I would be comfortable with the term intellectual property if it were used properly, ie to refer to the ownership of the actual copyright or patent and not to the “ownership” of the work covered by copyright or patent. After all, it is the rights of license that can be transferred, sold, etc, not the work those licenses pertain to. Sadly, current connotations have it as ownership of the work, and those connotations are abused on a daily basis.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    A copyright or a patent is a privilege, a grant of monopoly for commercial exploitation, an economic incentive to publish.

    That these privileges apply to intellectual works does not make the privileges intellectual. The privileges are commercial. If they are transferable then they would more logically be termed commercial property. There may be an even more approriate name, but the property is sorely lacking in intellectual attributes.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    A copyright or a patent is a privilege, a grant of monopoly for commercial exploitation, an economic incentive to publish.

    That these privileges apply to intellectual works does not make the privileges intellectual. The privileges are commercial. If they are transferable then they would more logically be termed commercial property. There may be an even more approriate name, but the property is sorely lacking in intellectual attributes.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Noel, property doesn’t necessarily imply a consumable.

    A park or monument can be public property without needing to be consumed.

    That a digital artwork cannot be consumed does not prevent it being public property.

    Tragedy of the commons occurs not due to the commons being public property, but due to its capacity being exhaustible through consumption.

    Purveyors of pulp entertainment may like to term digital artworks as content, and their audiences as consumers, but digital art is not actually consumable.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Noel, property doesn’t necessarily imply a consumable.

    A park or monument can be public property without needing to be consumed.

    That a digital artwork cannot be consumed does not prevent it being public property.

    Tragedy of the commons occurs not due to the commons being public property, but due to its capacity being exhaustible through consumption.

    Purveyors of pulp entertainment may like to term digital artworks as content, and their audiences as consumers, but digital art is not actually consumable.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    Tim:

    I agree wholeheartedly, but you should acknowledge RMS, who has a well-known essay on exactly this subject.

    Not to link to his words on this issue, when the conclusion and reasoning is so similar to yours seems a bit odd.

    Perhaps you weren’t aware of his writing on ezxactly this issue?

    EF

  • http://enigmafoundry.wordpress.com eee_eff

    Tim:

    I agree wholeheartedly, but you should acknowledge RMS, who has a well-known essay on exactly this subject.

    Not to link to his words on this issue, when the conclusion and reasoning is so similar to yours seems a bit odd.

    Perhaps you weren’t aware of his writing on ezxactly this issue?

    EF

  • http://www.techliberation.com Tim Lee

    EF: That’s interesting! I had not seen his writings before.

  • http://www.techliberation.com Tim Lee

    EF: That’s interesting! I had not seen his writings before.

  • http://weblog.ipcentral.info/ Noel Le

    Tim, you’re doing fine on your own. Please don’t conjure up Stallman…:)

  • http://weblog.ipcentral.info/ Noel Le

    Tim, you’re doing fine on your own. Please don’t conjure up Stallman…:)

  • http://www.cato.org/people/harper.html Jim Harper

    Can’t join you in this, Tim.

    “Property” is a way of saying “thing.” The addition of the word “real” to make the phrase “real property” helps distinguish between movable things and immovable things. There’s no reason why we couldn’t adapt it to things that are products of cognition and volition and call them “intellectual property.” They have further distinct ‘properties’ that we should explore and discuss.

    I think your objection is better aimed at people who use the term “intellectual property” to refer to intellectual property laws like patent and copyright. Imagine the same usage of the term “real property” – as in “I’m against real property.” OK, why don’t you throw yourself to the ground and beat on it until it relents . . . . What a person saying that probably means is “I’m against the doctrine(s) of real property law.”

    What they also might mean is, “I am against private ownership of real property.” A second common mistake is for people to assume a thing has a certain ownership status because it is called “property.” As you know, Locke distinguished between common property and private property. Saying “property” does not necessarily mean either. A problem is that people often use or assume the phrase “intellectual property” to mean private intellectual property.

    Because of their differing natures, there is more common intellectual property than common tangible property. This means that people who assume intellectual property is owned are wrong more of the time than they are when they talk about other forms of property. Nothing about term “property” requires us to assume it has a certain ownership status – that’s just a mental habit that needs curing.

    If we decline to use the word “intellectual property,” how would you refer to ideas and expressions that are not subject to patent and copyright law? As “public domain”? I don’t think it’s a good idea to name something by its status. Language works better when we have names for things distinct from their status. “Boy,” for example, is a useful term for “male child.” A boy might also be a “brother,” “son,” “friend” or “classmate” – each of these denoting a different status. Something might be my intellectual property or your intellectual property, or just “intellectual property,” meaning only taht it is a thing produced by cognition or volition.

    I think it’s better to take people on a long journey through all the conceptual and intellectual steps, using the most natural language possible, than to shortcut the process by banishing certain useful terms. I agree that all of us could tighten up our language.

  • http://www.cato.org/people/harper.html Jim Harper

    Can’t join you in this, Tim.

    “Property” is a way of saying “thing.” The addition of the word “real” to make the phrase “real property” helps distinguish between movable things and immovable things. There’s no reason why we couldn’t adapt it to things that are products of cognition and volition and call them “intellectual property.” They have further distinct ‘properties’ that we should explore and discuss.

    I think your objection is better aimed at people who use the term “intellectual property” to refer to intellectual property laws like patent and copyright. Imagine the same usage of the term “real property” – as in “I’m against real property.” OK, why don’t you throw yourself to the ground and beat on it until it relents . . . . What a person saying that probably means is “I’m against the doctrine(s) of real property law.”

    What they also might mean is, “I am against private ownership of real property.” A second common mistake is for people to assume a thing has a certain ownership status because it is called “property.” As you know, Locke distinguished between common property and private property. Saying “property” does not necessarily mean either. A problem is that people often use or assume the phrase “intellectual property” to mean private intellectual property.

    Because of their differing natures, there is more common intellectual property than common tangible property. This means that people who assume intellectual property is owned are wrong more of the time than they are when they talk about other forms of property. Nothing about term “property” requires us to assume it has a certain ownership status – that’s just a mental habit that needs curing.

    If we decline to use the word “intellectual property,” how would you refer to ideas and expressions that are not subject to patent and copyright law? As “public domain”? I don’t think it’s a good idea to name something by its status. Language works better when we have names for things distinct from their status. “Boy,” for example, is a useful term for “male child.” A boy might also be a “brother,” “son,” “friend” or “classmate” – each of these denoting a different status. Something might be my intellectual property or your intellectual property, or just “intellectual property,” meaning only taht it is a thing produced by cognition or volition.

    I think it’s better to take people on a long journey through all the conceptual and intellectual steps, using the most natural language possible, than to shortcut the process by banishing certain useful terms. I agree that all of us could tighten up our language.

  • http://www.techliberation.com/ Tim

    Jim,

    You probably have a better sense of the historical and philosophical roots of the word “property” than me, but I don’t think that’s how people use the term today. Merriam-Webster defines property as:

    2 a : something owned or possessed; specifically : a piece of real estate b : the exclusive right to possess, enjoy, and dispose of a thing : OWNERSHIP c : something to which a person or business has a legal title d : one (as a performer) who is under contract and whose work is especially valuable e : a book or script purchased for publication or production

    So I don’t agree with you when you say that “nothing about term ‘property’ requires us to assume it has a certain ownership status.” In my experience, in commonly accepted meaning of the word “property” does imply ownership status.

    Indeed, I don’t think I’ve ever heard someone use the phrase “intellectual property” in a context other than copyright or patent law. We don’t describe our childrens’ drawings or the songs we sing in the shower as our intellectual property. When people talk about intellectual property, they don’t just mean intellectual work in general. They specifically mean intellectual works over which someone is asserting ownership.

    I’m puzzled by your question about how we would refer to ideas and expressions that are not subject to patent or copyright law, because, as I said, I’ve never heard anyone talk about “intellectual property” outside of that context. Could you give me an example of a situation where the phrase would be missed?

  • http://www.techliberation.com/ Tim

    Jim,

    You probably have a better sense of the historical and philosophical roots of the word “property” than me, but I don’t think that’s how people use the term today. Merriam-Webster defines property as:

    2 a : something owned or possessed; specifically : a piece of real estate b : the exclusive right to possess, enjoy, and dispose of a thing : OWNERSHIP c : something to which a person or business has a legal title d : one (as a performer) who is under contract and whose work is especially valuable e : a book or script purchased for publication or production

    So I don’t agree with you when you say that “nothing about term ‘property’ requires us to assume it has a certain ownership status.” In my experience, in commonly accepted meaning of the word “property” does imply ownership status.

    Indeed, I don’t think I’ve ever heard someone use the phrase “intellectual property” in a context other than copyright or patent law. We don’t describe our childrens’ drawings or the songs we sing in the shower as our intellectual property. When people talk about intellectual property, they don’t just mean intellectual work in general. They specifically mean intellectual works over which someone is asserting ownership.

    I’m puzzled by your question about how we would refer to ideas and expressions that are not subject to patent or copyright law, because, as I said, I’ve never heard anyone talk about “intellectual property” outside of that context. Could you give me an example of a situation where the phrase would be missed?

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    EF finds it very hard to believe that anyone who has even a passing interest in computer laws and patents, copyrights and trademarks would be unaware of RMS’s extensive writings on this subject.

    RMS essay on why not use the term IP

    The essay starts out:

    “It has become fashionable to describe copyright, patents, and trademarks as “intellectual property”. This fashion did not arise by
    accident–the term systematically distorts and confuses these issues,
    and its use was and is promoted by those who gain from this confusion.
    Anyone wishing to think clearly about any of these laws would do well
    to reject the term.”

    and goes on to make all the points Tim Lee makes above, and a few others, too.

  • http://enigmafoundry.wordpress.com eee_eff

    EF finds it very hard to believe that anyone who has even a passing interest in computer laws and patents, copyrights and trademarks would be unaware of RMS’s extensive writings on this subject.

    RMS essay on why not use the term IP

    The essay starts out:

    “It has become fashionable to describe copyright, patents, and trademarks as “intellectual property”. This fashion did not arise by
    accident–the term systematically distorts and confuses these issues,
    and its use was and is promoted by those who gain from this confusion.
    Anyone wishing to think clearly about any of these laws would do well
    to reject the term.”

    and goes on to make all the points Tim Lee makes above, and a few others, too.

  • http://tieguy.org/ Luis Villa

    C’mon, Tim, take the final step- call it a limited, government-granted monopoly. You know you want to. ;)

  • http://tieguy.org/ Luis Villa

    C’mon, Tim, take the final step- call it a limited, government-granted monopoly. You know you want to. ;)

  • http://peeved.org/blog Evan

    If we care about reforming the legal regimes that control “IP”, I think we’d do well to call it what it is (at least in the United States): a grant of limited monopoly by the people. The government enforces the social contract, but the government derives its power from us. “Copyfighters” would do well to campaign against the offensive notions put forth by the entrenched copyright and patent interests that this stuff somehow arises from natural law. It’s a social contract, and contracts can be re-negotiated.

  • http://peeved.org/blog Evan

    If we care about reforming the legal regimes that control “IP”, I think we’d do well to call it what it is (at least in the United States): a grant of limited monopoly by the people. The government enforces the social contract, but the government derives its power from us. “Copyfighters” would do well to campaign against the offensive notions put forth by the entrenched copyright and patent interests that this stuff somehow arises from natural law. It’s a social contract, and contracts can be re-negotiated.

  • http://www.cato.org/people/harper.html Jim Harper

    Tim, I discussed this at length here.

    I don’t think appealling to a dictionary is necessarily a sound response. A dictionary adopts the most common usages, not the usages that are most philosophically or historically consistent. And try squaring that definition (and your claimed experience) with this sentence: “There’s a whole bunch of abandoned property over there in that field.”

    I think that the term “property” in the sense Locke used it can be extended to encompass creations of the mind. I suppose I was a little inaccurate saying that people are “mistaken” in the way the use the term now – I was really arguing for a change to a cleaner use of the term. Again, people are using the phrase “intellectual property” as a shorthand for intellectual property law. Intellectual property is the subject of intellectual property law, just like real property is the subject of real property law.

    Here’s a sentence where the phrase “intellectual property” fits well, without there being a claim to ownership: “The Renaissance and Enlightenment periods bequeathed a wealth of intellectual property to posterity.”

    Now, if not “intellectual property,” what do you call the pictures children draw and the songs sung in the shower? Is there a term for people’s oeuvre? It’s important to have one because whatever this stuff is is increasingly being collected, copied, stored, and reused. If we’re going to talk about it and explore the meanings of the things happening with it, we’ve got to have a name for it.

  • http://www.cato.org/people/harper.html Jim Harper

    Tim, I discussed this at length here.

    I don’t think appealling to a dictionary is necessarily a sound response. A dictionary adopts the most common usages, not the usages that are most philosophically or historically consistent. And try squaring that definition (and your claimed experience) with this sentence: “There’s a whole bunch of abandoned property over there in that field.”

    I think that the term “property” in the sense Locke used it can be extended to encompass creations of the mind. I suppose I was a little inaccurate saying that people are “mistaken” in the way the use the term now – I was really arguing for a change to a cleaner use of the term. Again, people are using the phrase “intellectual property” as a shorthand for intellectual property law. Intellectual property is the subject of intellectual property law, just like real property is the subject of real property law.

    Here’s a sentence where the phrase “intellectual property” fits well, without there being a claim to ownership: “The Renaissance and Enlightenment periods bequeathed a wealth of intellectual property to posterity.”

    Now, if not “intellectual property,” what do you call the pictures children draw and the songs sung in the shower? Is there a term for people’s oeuvre? It’s important to have one because whatever this stuff is is increasingly being collected, copied, stored, and reused. If we’re going to talk about it and explore the meanings of the things happening with it, we’ve got to have a name for it.

  • http://www.techliberation.com/ Tim

    I think you’re right that when people talk about intellectual property, they typically are referring to the subject of intellectual property law. Perhaps that’s not the most historically or philosophically sound way to use the term, but that’s what people generally mean when they use it. My point was that it’s unhelpful to lump copyrights, patents, and trademarks under the heading of “intellectual property law.” It sounds like we don’t disagree about that.

    I don’t see any philosophical problem with using the term “intellectual property” to refer to intellectual creations more broadly, but given the baggage the term currently carries, I think you run the serious risk of being misunderstood as referring specifically to those things that receive legal protections. I think there are plenty of ways to talk about creative output (using terms like “knowledge,” “culture,” “creativity,” etc) that are less likely to lead to confusion. Why not say “The Renaissance and Enlightenment periods bequeathed a wealth of knowledge and culture to posterity?”

  • http://www.techliberation.com/ Tim

    I think you’re right that when people talk about intellectual property, they typically are referring to the subject of intellectual property law. Perhaps that’s not the most historically or philosophically sound way to use the term, but that’s what people generally mean when they use it. My point was that it’s unhelpful to lump copyrights, patents, and trademarks under the heading of “intellectual property law.” It sounds like we don’t disagree about that.

    I don’t see any philosophical problem with using the term “intellectual property” to refer to intellectual creations more broadly, but given the baggage the term currently carries, I think you run the serious risk of being misunderstood as referring specifically to those things that receive legal protections. I think there are plenty of ways to talk about creative output (using terms like “knowledge,” “culture,” “creativity,” etc) that are less likely to lead to confusion. Why not say “The Renaissance and Enlightenment periods bequeathed a wealth of knowledge and culture to posterity?”

  • http://akira.arts.kuleuven.ac.be/andreas/blog/ Andreas

    FYI, Wikipedia has some interesting bits about the “IP” word: “The earliest use of the term “intellectual property” appears to be an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown. [...] The term’s widespread popularity is a much more modern phenomenon. It was very uncommon until the 1967 establishment of the World Intellectual Property Organization, which actively tried to promote the term.”

    A quick Google News Archive search seems to confirm this: the use of the term “intellectual property” seems rather uncommon in the first half of the 20th century (compare with copyright, for instance). Also worth a look: this 1938 Time Magazine article in which the term “intellectual property” is used in a non-copyright/patent related context.

  • http://akira.arts.kuleuven.ac.be/andreas/blog/ Andreas

    FYI, Wikipedia has some interesting bits about the “IP” word: “The earliest use of the term “intellectual property” appears to be an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown. [...] The term’s widespread popularity is a much more modern phenomenon. It was very uncommon until the 1967 establishment of the World Intellectual Property Organization, which actively tried to promote the term.”

    A quick Google News Archive search seems to confirm this: the use of the term “intellectual property” seems rather uncommon in the first half of the 20th century (compare with copyright, for instance). Also worth a look: this 1938 Time Magazine article in which the term “intellectual property” is used in a non-copyright/patent related context.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Intellectual property is the creation of one’s thought as realised on physical media or as a digital representation.

    It remains the artist’s property (in their control and ownership) until they give or sell it to another (when it becomes the recipient’s intellectual property – without denying the fact of authorship), or copy it to another (when it becomes their shared IP).

    If an artist publishes their IP (gives or sells it to another without confidence or contract) then it becomes public IP in so far as it is reproduced and distributed among the public.

    Private possession of a published work does not entitle any member of the public to demand its surrender from anyone they know to have it (for that would be a violation of the right to privacy).

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Intellectual property is the creation of one’s thought as realised on physical media or as a digital representation.

    It remains the artist’s property (in their control and ownership) until they give or sell it to another (when it becomes the recipient’s intellectual property – without denying the fact of authorship), or copy it to another (when it becomes their shared IP).

    If an artist publishes their IP (gives or sells it to another without confidence or contract) then it becomes public IP in so far as it is reproduced and distributed among the public.

    Private possession of a published work does not entitle any member of the public to demand its surrender from anyone they know to have it (for that would be a violation of the right to privacy).

  • http://www.digitalproductions.co.uk Crosbie Fitch

    As to why artists need the term intellectual property in addition to simply ‘art’, IP is the reproducible or non-physical aspect of any artwork, whereas art can encompass the entire physical realisation.

    So the handwritten manuscript is art. The words thereon are the intellectual property.

    It is only with the advent of reproduction technologies that we have started to need a term for the reproducible aspect of art.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    As to why artists need the term intellectual property in addition to simply ‘art’, IP is the reproducible or non-physical aspect of any artwork, whereas art can encompass the entire physical realisation.

    So the handwritten manuscript is art. The words thereon are the intellectual property.

    It is only with the advent of reproduction technologies that we have started to need a term for the reproducible aspect of art.

  • http://www.cato.org/people/harper.html Jim Harper

    Tim, I think calling unprotected creations of the human mind “knowledge” or “culture” is insufficient, and it will become moreso as debates about information policy continue. These words suggest that facts, inventions, and expressions are a single mass (or morass).

    Influenced by my study of privacy and personal information, I see information as billions of distinct items, many subject to different rules and treatments. We collect them, use them, hide them, display them, recombine them, and so on. Calling it all “knowledge” or “culture” is like insisting on the classes “earth, air, fire, and water” even though you’ve become aware of atoms and molecules.

  • http://www.cato.org/people/harper.html Jim Harper

    Tim, I think calling unprotected creations of the human mind “knowledge” or “culture” is insufficient, and it will become moreso as debates about information policy continue. These words suggest that facts, inventions, and expressions are a single mass (or morass).

    Influenced by my study of privacy and personal information, I see information as billions of distinct items, many subject to different rules and treatments. We collect them, use them, hide them, display them, recombine them, and so on. Calling it all “knowledge” or “culture” is like insisting on the classes “earth, air, fire, and water” even though you’ve become aware of atoms and molecules.

  • http://www.techliberation.com/ Tim

    Jim,

    I’m still confused. If the problem with “knowledge” and “culture” is that they’re too general, how does the term “intellectual property” improve matters? Isn’t that an argument for using the actual terms for the various types of content, like “song,” “painting,” “movie,” “book,” “fact,” “invention,” etc?

  • http://www.techliberation.com/ Tim

    Jim,

    I’m still confused. If the problem with “knowledge” and “culture” is that they’re too general, how does the term “intellectual property” improve matters? Isn’t that an argument for using the actual terms for the various types of content, like “song,” “painting,” “movie,” “book,” “fact,” “invention,” etc?

  • http://www.cato.org/people/harper.html Jim Harper

    You could, but songs, paintings, movies, books, and inventions are made of something. What are they made of?

    In the world of tangible things, we moved from “earth, air, fire, and water” to discovering the molecular, atomic, and sub-atomic constituents of things. We can do the same with intangibles, but we need a word for the constituent pieces that go into “content” or “songs” or what-have-you.

    I think little items of intellectual creation recombine to make all these things. The closest word we have for these little things is “property.” People collect, horde, give away, buy, and sell this stuff all the time, just like they do tangible property. But these things are distinct from tangible property, so a distinguishing adjective is needed. They’re products of intellect. So how about we call them “intellectual property”?

    Do you have a better word that describes the object of all this activity? A word we can use to build a theory of how information works in society?

  • http://www.cato.org/people/harper.html Jim Harper

    You could, but songs, paintings, movies, books, and inventions are made of something. What are they made of?

    In the world of tangible things, we moved from “earth, air, fire, and water” to discovering the molecular, atomic, and sub-atomic constituents of things. We can do the same with intangibles, but we need a word for the constituent pieces that go into “content” or “songs” or what-have-you.

    I think little items of intellectual creation recombine to make all these things. The closest word we have for these little things is “property.” People collect, horde, give away, buy, and sell this stuff all the time, just like they do tangible property. But these things are distinct from tangible property, so a distinguishing adjective is needed. They’re products of intellect. So how about we call them “intellectual property”?

    Do you have a better word that describes the object of all this activity? A word we can use to build a theory of how information works in society?

  • http://www.techliberation.com Tim Lee

    I can think of lots of words that could be used. I still don’t see why “knowledge” and “culture” won’t do the trick. Other terms that immediately come to mind are “information,” “intellectual creations,” “creative works,” “data,” “ideas,” “memes,” etc. Since this is a very young field, I think you could easily build your theory around any of those terms, or probably any number of others. They all have the advantage that they aren’t strongly associated with patents and copyrights, so that there’s less chance of people misunderstanding you.

    Anyway, my point wasn’t that we should erase “intellectual property” from our vocabulary entirely. My point was simply that we shouldn’t use “intellectual property” when what we’re really talking about is copyrights or patents. It sounds like we at least agree on that much.

  • http://www.techliberation.com Tim Lee

    I can think of lots of words that could be used. I still don’t see why “knowledge” and “culture” won’t do the trick. Other terms that immediately come to mind are “information,” “intellectual creations,” “creative works,” “data,” “ideas,” “memes,” etc. Since this is a very young field, I think you could easily build your theory around any of those terms, or probably any number of others. They all have the advantage that they aren’t strongly associated with patents and copyrights, so that there’s less chance of people misunderstanding you.

    Anyway, my point wasn’t that we should erase “intellectual property” from our vocabulary entirely. My point was simply that we shouldn’t use “intellectual property” when what we’re really talking about is copyrights or patents. It sounds like we at least agree on that much.

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