Copyright as Intellectual Property Privilege

by on October 23, 2007 · 14 comments

I recently completed a draft of Copyright as Intellectual Property Privilege, 58 Syracuse L. Rev. __ (2007) (forthcoming) (invited). Here’s an abstract:

We often call copyright a species of intellectual property, abbreviating it, “IP.” This brief paper suggests that we consider copyright as another sort of IP: an intellectual privilege. Though copyright doubtless has some property-like attributes, it more closely resembles a special statutory benefit than it does a right, general in nature and grounded in common law, deserving the title of “property.” To call copyright a “privilege” accurately reflects legal and popular usage, past and present. It moreover offers salutary policy results, protecting property’s good name and rebalancing the public choice pressures that drive copyright policy. We face a choice between two ways of thinking about, and talking about, copyright: As an intellectual property that authors and their assigns own, or as an intellectual privilege that they merely hold. Perhaps no label can fully capture the unique and protean nature of copyright. Recognizing it as form of intellectual privilege would, however, help to keep copyright within its proper legal limits.


I encourage you to download a copy of the draft paper and offer me your thoughts. I’ll present it at Syracuse University College of Law this coming Friday, October 26, at Creators vs. Consumers: The Rhetoric, Reality, and Reformation of Intellectual Property Law and Policy, a symposium hosted by the Syracuse Law Review and The Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University.

The event promises some good, geeky fun. In addition to a keynote address by Professor Tim Wu, of Columbia Law School, the conference will offer four sessions, one each on trademarks, patents, copyrights, and new frontiers of IP. Each session will feature a presentation followed by commentary. I’m the sacrificial lamb for copyright. I’ll certainly take the comments I get to heart, as I plan to eventually rework the paper into the first chapter of my book-in-progress, Intellectual Privilege: Copyright, Common Law, and the Common Good.

[Crossposted to Intellectual Privilege and Agoraphilia.]

  • Sccarper

    “Intellectual Privilege” doesn’t work for me as a way to reframe the debate. While it is a clever attempt to retain the initials “IP,” the connotation of “intellectual” is changed by the substitution of privilege for property. In the new context sounds like “intellectual” refers to a smart person rather than ideas or expressions of ideas.

    This is not to say that using the term “privilege” can’t work but I don’t think it works in “Intellectual privilege.”

    We used “author’s monopoly” for decades. I think people can viscerally agree that monopolies should be limited.

  • Sccarper

    “Intellectual Privilege” doesn’t work for me as a way to reframe the debate. While it is a clever attempt to retain the initials “IP,” the connotation of “intellectual” is changed by the substitution of privilege for property. In the new context sounds like “intellectual” refers to a smart person rather than ideas or expressions of ideas.

    This is not to say that using the term “privilege” can’t work but I don’t think it works in “Intellectual privilege.”

    We used “author’s monopoly” for decades. I think people can viscerally agree that monopolies should be limited.

  • http://www.tomwbell.com Tom W. Bell

    Thanks, Sccarper.

    I sympathize with the sentiments behind “monopoly,” but question its accuracy. Following D. Friedman, I think it wiser to speak in terms of market power.

    Check out the paper for my explanation of why “intellectual privilege,” beyond offering merely a clever acronym, offers a useful rhetorical and mnemonic device.

  • http://www.tomwbell.com Tom W. Bell

    Thanks, Sccarper.

    I sympathize with the sentiments behind “monopoly,” but question its accuracy. Following D. Friedman, I think it wiser to speak in terms of market power.

    Check out the paper for my explanation of why “intellectual privilege,” beyond offering merely a clever acronym, offers a useful rhetorical and mnemonic device.

  • http://gnuosphere.wordpress.com Peter Rock

    I think Sccarper has a point. This way makes “Intellectual” sound more like a noun rather than adjective.

    I do sympathize with the “privilege” point of view. However, this only fixes one of two problems with the term “Intellectual Property”. The problem it doesn’t fix is this mashing together of laws that are very very different in implementation and purpose. True, patents and copyright are privileges. But is a trademark a privilege? It seems to resemble more a right as its purpose is to protect consumers and business.

    Regardless, any work that questions the absurd proposition that we should think of ideas as “property” is certainly welcome. It’s simply not possible to pass sane laws when we think this way.

  • http://gnuosphere.wordpress.com Peter Rock

    I think Sccarper has a point. This way makes “Intellectual” sound more like a noun rather than adjective.

    I do sympathize with the “privilege” point of view. However, this only fixes one of two problems with the term “Intellectual Property”. The problem it doesn’t fix is this mashing together of laws that are very very different in implementation and purpose. True, patents and copyright are privileges. But is a trademark a privilege? It seems to resemble more a right as its purpose is to protect consumers and business.

    Regardless, any work that questions the absurd proposition that we should think of ideas as “property” is certainly welcome. It’s simply not possible to pass sane laws when we think this way.

  • http://www.digital-copyright.ca/Jefferson_Debate Russell McOrmond

    I wrote an earlier article on a related topic.

    Jefferson Debate: A Godwin’s law for copyright discussions?
    http://www.digital-copyright.ca/Jefferson_Debate

    Your work in this area will be critical to trying to advance the debate beyond discussions of “theft” to actually solving some of the growing pains in Intellectual Privilege that we have seen.

  • http://www.digital-copyright.ca/Jefferson_Debate Russell McOrmond

    I wrote an earlier article on a related topic.

    Jefferson Debate: A Godwin’s law for copyright discussions?
    http://www.digital-copyright.ca/Jefferson_Debate

    Your work in this area will be critical to trying to advance the debate beyond discussions of “theft” to actually solving some of the growing pains in Intellectual Privilege that we have seen.

  • http://www.tomwbell.com Tom W. Bell

    Peter: I agree that trademark doesn’t quite fit. As I describe in my paper, I would largely exclude it from my definition of intellectual privilege. I say “largely” because statutory add-ons (anti-dilution provisions of the Lanham Act, for instance) to common law unfair competition laws look suspect to me.

    Russell: Thanks for the cite. I’ll check it out.

  • http://www.tomwbell.com Tom W. Bell

    Peter: I agree that trademark doesn’t quite fit. As I describe in my paper, I would largely exclude it from my definition of intellectual privilege. I say “largely” because statutory add-ons (anti-dilution provisions of the Lanham Act, for instance) to common law unfair competition laws look suspect to me.

    Russell: Thanks for the cite. I’ll check it out.

  • Steve

    Thought it may be better served if divided into two different shorter papers. You make a good case for “intellectual privilege” but there are other (valid) elements that you include. If presented as is, I think your audience might lose focus. If in a book, it feels like two different chapters to me.

    “Both copyright and government provide public goods; expressive works in the one case, peace and prosperity in the other.”
    I read it quickly, but this sentence caught my eye. Earlier in the paper you talk about anti-property. For that sentence, Copyright is more of an anti-good.
    Copyright creates nothing. It denies further acts of creation.

  • Steve

    Thought it may be better served if divided into two different shorter papers. You make a good case for “intellectual privilege” but there are other (valid) elements that you include. If presented as is, I think your audience might lose focus. If in a book, it feels like two different chapters to me.

    “Both copyright and government provide public goods; expressive works in the one case, peace and prosperity in the other.”
    I read it quickly, but this sentence caught my eye. Earlier in the paper you talk about anti-property. For that sentence, Copyright is more of an anti-good.
    Copyright creates nothing. It denies further acts of creation.

  • jeroen

    Copyright?
    Copy Right!
    In other words, do copy, but do it right; inventions are for the advancement of humankind, not a selection thereof. These days, laboratories or companies etc. can easily develop into de facto standards for certain technologies, simply based on their practical and theoretical expertise, which makes one wonder whether copyrights and patents – which form of Intellectual Property I am more directly addressing here – serve any purpose other than to needlessly delay useful and necessary innovations. In many areas, time to market is such a significant advantage and necessary government approval (FDA in case of medical field for example) such a big barrier to entry that we could do perhaps very well without the rights.
    Whatever intermediate forms it will take to avoid total anarchy, I advocate a much more open attitude to the issue and as a first step, certainly lower barriers to licensing, for example.
    In the medical field, development costs for a new drug are often quite precisely known as development typically takes place in a dedicated biotech company; it would appear obvious that investors therein should be allowed to recover their investment – with an applicable compound return for the sector (which will be the tricky issue ; at what hurdle rate do we set that, an industry average over the last ten years or so ; it is an arbitrary element, if we can do without arbitrary elements, would work better) – after which the patent should unlock instead of the current practice of a fixed number of years.

  • jeroen

    Copyright?
    Copy Right!
    In other words, do copy, but do it right; inventions are for the advancement of humankind, not a selection thereof. These days, laboratories or companies etc. can easily develop into de facto standards for certain technologies, simply based on their practical and theoretical expertise, which makes one wonder whether copyrights and patents – which form of Intellectual Property I am more directly addressing here – serve any purpose other than to needlessly delay useful and necessary innovations. In many areas, time to market is such a significant advantage and necessary government approval (FDA in case of medical field for example) such a big barrier to entry that we could do perhaps very well without the rights.
    Whatever intermediate forms it will take to avoid total anarchy, I advocate a much more open attitude to the issue and as a first step, certainly lower barriers to licensing, for example.
    In the medical field, development costs for a new drug are often quite precisely known as development typically takes place in a dedicated biotech company; it would appear obvious that investors therein should be allowed to recover their investment – with an applicable compound return for the sector (which will be the tricky issue ; at what hurdle rate do we set that, an industry average over the last ten years or so ; it is an arbitrary element, if we can do without arbitrary elements, would work better) – after which the patent should unlock instead of the current practice of a fixed number of years.

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