Why the term 'intellectual property' is a seductive mirage

Why the term 'intellectual property' is a seductive mirage
Richard Stallman

It has become fashionable to describe copyright, patents, andtrademarks as "intellectual property." This fashion did not arise by accident -- the term systematically distorts and confuses these issues. Anyone wishing to think clearly about any of these laws woulddo well to resist it.

One effect of the term is a bias that is not hard to see: It suggests thinking about copyright, patents and trademarks by analogy, withproperty rights for physical objects. (This analogy is at odds withthe legal philosophies of copyright law, of patent law, and oftrademark law, but only specialists know that.) These laws are, infact, not much like physical property law, but use of this term leadslegislators to change them to be more so. Since that is the changedesired by the companies that exercise copyright, patent, andtrademark powers, these companies have worked to make the term fashionable.

Is the term 'intellectual property' a fad?

According to Professor Mark Lemley, now of the Stanford UniversitySchool of Law, the widespread use of the term "intellectual property"is a fad that followed the 1967 founding of the World "IntellectualProperty" Organization, and only became really common in the past fewyears. (WIPO is formally a UN organization, but in fact it representsthe interests of the holders of copyrights, patents, and trademarks.)

Those who would prefer to judge these issues on their merits shouldreject a biased term for them. Many have asked me to propose someother name for the category -- or have proposed alternativesthemselves. Suggestions include IMPs, for Imposed Monopoly Privileges,and GOLEMs, for Government-Originated Legally Enforced Monopolies.Some speak of "exclusive rights regimes," but this means referring to restrictions as rights, which is doublethink, too.
But it is a mistake to replace "intellectual property" with any otherterm. A different name could eliminate the bias but won't address theterm's deeper problem: overgeneralization. There is no such unified thing as "intellectual property." It is a mirage, which appears tohave a coherent existence only because the term suggests it does.

The term "intellectual property" operates as a catch-all to lumptogether disparate laws. Non-lawyers who hear the term "intellectualproperty" applied to these various laws tend to assume they areinstances of a common principle, and that they function similarly.Nothing could be further from the case.

These laws originated separately, evolved differently, cover differentactivities, have different rules, and raise different public policy issues. Copyright law was designed to promote authorship and art, andcovers the details of a work of authorship or art. Patent law was intended to encourage publication of ideas, at the price of finitemonopolies over these ideas -- a price that may be worth paying insome fields and not in others. Trademark law was not intended topromote any business activity but simply to enable buyers to know whatthey are buying; however, legislators under the influence of"intellectual property" have turned it into a scheme that providesincentives for advertising (without asking the public if we want moreadvertising).

All IP laws are different in every detail

Since these laws developed independently, they are different in everydetail as well as in their basic purposes and methods. Thus, if youlearn some fact about copyright law, you had better assume that patent law is different. You'll rarely go wrong that way!

Laymen are not alone in getting confused by this term. I regularly find that experts on patent law, copyright law, and trademark law --even law professors who teach these subjects -- have been lured by the seductiveness of the term "intellectual property" into general statements that conflict with the facts they know. The term distracts them from using their own knowledge.
People often say "intellectual property" when they really mean someother category, larger or smaller than "intellectual property." For instance, rich countries impose laws on poor countries to squeezemoney out of them. These laws often fit the category of "intellectual property" -- so people who question the fairness of these laws oftenuse that label, even though it does not really fit. That can lead to incorrect statements and unclear thinking. For this subject, I recommend using a term such as "legislative colonization" that focuses on the central aspect of the subject, rather than the term"intellectual property." For other subjects, the term that describesthe subject would be different.

The term "intellectual property" also leads to simplistic thinking. It leads people to focus on the meager commonality in form of these disparate laws, which is that they create special powers that can bebought and sold, and ignore their substance -- the specific restrictions each of them places on the public, and the consequences that result.

At such a broad scale, people can't even see the specific publicpolicy issues raised by copyright law, or the different issues raised by patent law, or any of the others. These issues arise from thespecifics, precisely what the term "intellectual property" encourages people to ignore.

Why generalized opinions about IP are foolish

For instance, one issue relating to copyright law is whether music sharing should be allowed. Patent law has nothing to do with this. Butpatent law raises the issue of whether poor countries should beallowed to produce life-saving drugs and sell them cheaply to savelives. Copyright law has nothing to do with that. Neither of these issues is just an economic issue, and anyone looking at them in theshallow economic perspectives of over generalization can't grasp them.Thus, any opinion about "the issue of intellectual property" is almostsurely foolish. If you think it is one issue, you will tend toconsider only opinions that treat all these laws the same. Whicheverone you pick, it won't make any sense.

If you want to think clearly about the issues raised by patents, orcopyrights, or trademarks, or even learn what these laws say, the first step is to forget the idea of lumping them together, and treatthem as separate topics. If you want to write articles that inform the public and encourage clear thinking, treat each of these lawsseparately; don't suggest generalizing about them.
And when it comes to reforming WIPO, among other things, let's call for changing its name.

Copyright 2004 Richard Stallman. Verbatim copying and distribution ofthis entire article are permitted worldwide without royalty in any medium provided this notice is preserved.