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

by on November 21, 2006

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.

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