15. Did You Say ``Intellectual Property''? It's a Seductive Mirage

It has become fashionable to toss copyright, patents, and +trademarks—three separate and different entities involving three +separate and different sets of laws—plus a dozen other laws into +one pot and call it “intellectual property.” The +distorting and confusing term did not become common by accident. +Companies that gain from the confusion promoted it. The clearest way +out of the confusion is to reject the term entirely. +

According to Professor + +Mark Lemley, now of the +Stanford Law School, +the widespread use of the term “intellectual property” is +a fashion that followed the 1967 founding of the + +World “Intellectual +Property” Organization (WIPO), and only became really common in recent +years. (WIPO is formally a + +UN organization, but in fact represents the +interests of the holders of copyrights, patents, and trademarks.) +

The term carries a bias that is not hard to see: it suggests thinking +about copyright, patents and trademarks by analogy with property +rights for physical objects. (This analogy is at odds with the legal +philosophies of copyright law, of patent law, and of trademark law, +but only specialists know that.) These laws are in fact not much like +physical property law, but use of this term leads legislators to +change them to be more so. Since that is the change desired by the +companies that exercise copyright, patent and trademark powers, the +bias introduced by the term “intellectual property” suits them. +

The bias is reason enough to reject the term, and people have often +asked me to propose some other name for the overall category—or +have proposed their own alternatives (often humorous). Suggestions +include IMPs, for Imposed Monopoly Privileges, and GOLEMs, for +Government-Originated Legally Enforced Monopolies. Some speak of +“exclusive rights regimes,” but referring to restrictions +as “rights” is doublethink too. +

Some of these alternative names would be an improvement, but it is a +mistake to replace “intellectual property” with any other +term. A different name will not address the term’s deeper problem: +overgeneralization. There is no such unified thing as +“intellectual property”—it is a mirage. The only +reason people think it makes sense as a coherent category is that +widespread use of the term has misled them. +

The term “intellectual property” is at best a catch-all to +lump together disparate laws. Nonlawyers who hear one term applied to +these various laws tend to assume they are based on a common +principle and function similarly. +

Nothing could be further from the case. +These laws originated separately, evolved differently, cover different +activities, have different rules, and raise different public policy issues. +

Copyright law was designed to promote authorship and art, and covers +the details of expression of a work. Patent law was intended to +promote the publication of useful ideas, at the price of giving the +one who publishes an idea a temporary monopoly over it—a price +that may be worth paying in some fields and not in others. +

Trademark law, by contrast, was not intended to promote any particular +way of acting, but simply to enable buyers to know what they are +buying. Legislators under the influence of the term “intellectual +property,” however, have turned it into a scheme that provides +incentives for advertising. +

Since these laws developed independently, they are different in every +detail, as well as in their basic purposes and methods. Thus, if you +learn some fact about copyright law, you’d be wise to assume that +patent law is different. You’ll rarely go wrong! +

People often say “intellectual property” when they really +mean some larger or smaller category. For instance, rich countries +often impose unjust laws on poor countries to squeeze money out of +them. Some of these laws are “intellectual property” laws, +and others are not; nonetheless, critics of the practice often grab +for that label because it has become familiar to them. By using it, +they misrepresent the nature of the issue. It would be better to use +an accurate term, such as “legislative colonization,” that +gets to the heart of the matter. +

Laymen are not alone in being confused by this term. Even law +professors who teach these laws are lured and distracted by the +seductiveness of the term “intellectual property,” and +make general statements that conflict with facts they know. For +example, one professor wrote in 2006: +

+
Unlike their descendants who now work the floor at WIPO, the framers +of the US constitution had a principled, procompetitive attitude to +intellectual property. They knew rights might be necessary, +but…they tied congress’s hands, restricting its power in +multiple ways. +
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That statement refers to Article I, Section 8, Clause 8, of the + +US +Constitution, which authorizes copyright law and patent law. That +clause, though, has nothing to do with trademark law or various +others. The term “intellectual property” led that +professor to make false generalization. +

The term “intellectual property” also leads to simplistic +thinking. It leads people to focus on the meager commonality in form +that these disparate laws have—that they create artificial +privileges for certain parties—and to disregard the details +which form their substance: the specific restrictions each law places +on the public, and the consequences that result. This simplistic focus +on the form encourages an “economistic” approach to all +these issues. +

+ +

Economics operates here, as it often does, as a vehicle for unexamined +assumptions. These include assumptions about values, such as that +amount of production matters while freedom and way of life do not, +and factual assumptions which are mostly false, such as that +copyrights on music supports musicians, or that patents on drugs +support life-saving research. +

Another problem is that, at the broad scale implicit in the term “intellectual +property,” the specific issues raised by the various laws become +nearly invisible. These issues arise from the specifics of each +law—precisely what the term “intellectual property” +encourages people to ignore. For instance, one issue relating to +copyright law is whether music sharing should be allowed; patent law +has nothing to do with this. Patent law raises issues such as whether +poor countries should be allowed to produce life-saving drugs and sell +them cheaply to save lives; copyright law has nothing to do with such +matters. +

Neither of these issues is solely economic in nature, and their +noneconomic aspects are very different; using the shallow economic +overgeneralization as the basis for considering them means ignoring the +differences. Putting the two laws in the “intellectual +property” pot obstructs clear thinking about each one. +

Thus, any opinions about “the issue of intellectual +property” and any generalizations about this supposed category +are almost surely foolish. If you think all those laws are one issue, +you will tend to choose your opinions from a selection of sweeping +overgeneralizations, none of which is any good. +

+ +

If you want to think clearly about the issues raised by patents, or +copyrights, or trademarks, or various other different laws, the first +step is to forget the idea of lumping them together, and treat them as +separate topics. The second step is to reject the narrow perspectives +and simplistic picture the term “intellectual property” +suggests. Consider each of these issues separately, in its fullness, +and you have a chance of considering them well. +

+ +

And when it comes to reforming WIPO, among other things +let’s call for changing its name.

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