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On ‘Intellectual Property’

Patents: One thing that gets pretty confusing when one investigates the whole patents/open-source/copyright protection field, is the nature of the term Intellectual Property.

What’s called ‘IP’ consists of three parts: copyright, patents, and trademarks. This extract from Harvard’s ‘Intellectual Property in Cyberspace’ series notes:

In the eighteenth century, lawyers and politicians were more likely to refer to patents and copyrights as ‘monopolies’ than they were to refer to them as forms of ‘property.’ … Thomas Jefferson was the most prominent adherent of this view, but many others shared his attitude to varying degrees. ….

Another, more general manifestation of the same trend has been the growing power of the phrase ‘intellectual property.’ Before the Second World War, use of the phrase as shorthand for copyrights, patents, trademarks, and related entitlements was rare. Since that time, it has become steadily more common. n105 Today, it is the standard way for lawyers and law teachers to refer to the field.

Why does the popularity of the term matter? The answer … is that legal discourse has power. Specifically, the use of the term ‘property’ to describe copyrights, patents, trademarks, etc. conveys the impression that they are fundamentally ‘like’ interests in land or tangible personal property — and should be protected with the same generous panoply of remedies. ….

Regrettably, the pleas by Cohen and a few others that judges jettison the concept of ‘property’ and frankly confront the public policy implications of protecting certain kinds of information fell largely on deaf ears. The ‘propertization’ of the field continued — and is now well-nigh complete.

It’s common to read commentary by outsiders — journalists especially — who conflate all three forms of ‘IP’, and therefore assuming that all three should be considered as ‘equal’ to physical property. In other words, they fall into this trap.

In reality, a trademark should have much more protection than a patent; copyright over ‘bits’ is not the same thing as physical ownership of atoms; the concept of the public domain is a whole lot different between ‘things’ and ‘bits’; there’s a difference.

To this end, this disclaimer from the UN World Summit on the Information Society is very significant; they’ve recognised these issues.

This working group has come to recognize that the term ‘intellectual property rights’ carries bias and encourages simplistic overgeneralization. Therefore this working group does not carry the name IPR. In particular, this group does not endorse the legal school of thought, which advocates that productions of the mind shall be treated in a similar way as real estate property. This legal doctrine implicitly backs the concept that copyrights should last for ever.

Nice work! (thanks to Russell McOrmond and Seth Johnson for noting it.)

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