The grand term ‘intellectual property’ covers a lot of ground: the software that runs our lives, the movies we watch, the songs we listen to. But also the credit-scoring algorithms that determine the contours of our futures, the chemical structure and manufacturing processes for life-saving pharmaceutical drugs, even the golden arches of McDonald’s and terms such as ‘Google’. All are supposedly ‘intellectual property’. We are urged, whether by stern warnings on the packaging of our Blu-ray discs or by sonorous pronouncements from media company CEOs, to cease and desist from making unwanted, illegal or improper uses of such ‘property’, not to be ‘pirates’, to show the proper respect for the rights of those who own these things. But what kind of property is this? And why do we refer to such a menagerie with one inclusive term?
The phrase ‘intellectual property’ was first used in a legal decision in 1845 and acquired formal heft in 1967 with the establishment of the World Intellectual Property Organization (WIPO), a specialised agency of the United Nations that represents and protects the commercial interests of holders of copyrights, patents, trademarks and trade secrets. The ubiquitous use of ‘intellectual property’ began in the digital era of production, reproduction and distribution of cultural and technical artifacts. As a new political economy appeared, so did a new commercial and legal rhetoric. ‘Intellectual property’, a central term in that new discourse, is a culturally damaging and easily weaponised notion. Its use should be resisted.
There are four areas of US federal law linked under the rubric of ‘intellectual property’ that we ought to keep separate in our minds. In an essay published in The Politics of Law (2010), Keith Aoki defines each as follows. Copyright protects ‘original works such as books, music, sculpture, movies and aspects of computer programs’ that are ‘embodied or fixed in a tangible medium’. This protection does not require a work to be entirely novel and extends only to its ‘original aspects’, to ‘a particular expression … not the underlying ideas’, and not to ‘independently created or similar works’. Under the umbrella of copyright law are original, concrete expressions, not ideas – the same story and script idea can generate many distinct movies, for instance. Then there are patents, which cover ‘new and useful inventions, manufactures, compositions of matter and processes reduced to practice by inventors’ with ‘rigorous requirements of subject matter, novelty, utility and non-obviousness’. Patents protect realised inventions and ideas in gestation – eg, here is a new method for collecting rainwater, and this is a machine that does just that. Trademarks (and the related ‘trade dresses’) meanwhile protect consumers from ‘mistake, confusion and deception’ about the sources of commercial goods: the ‘G’ in Gucci, Apple’s apple, a distinctive packaging. Finally, there are trade secrets, or secret information that confers economic benefits on its holder and is subject to the holder’s reasonable efforts to maintain its secrecy.
Each regime has a public-policy justification: copyright law incentivises the production of creative works, which populate the public domain of culture. Patent law lets inventors and users benefit from the original ideas disclosed in a patent filing, and aims to make research and development economically feasible by producing investment in new technologies and products. Trademark law protects customers by informing them that their preferred vendor – and not some counterfeiter making inferior goods – is the source of the goods they’re buying. Copyright- and patent-holders extract monopoly rent from protected subject matter, or its concrete expression, for a limited period. Such limited exclusivity is meant to encourage the further production of original expressions and inventions by providing raw materials for other creators and inventors to build on.
In the United States, media and technology have been shaped by these laws, and indeed many artists and creators owe their livelihoods to such protections. But recently, in response to the new ways in which the digital era facilitates the creation and distribution of scientific and artistic products, the foundations of these protections have been questioned. Those calling for reform, such as the law professors Lawrence Lessig and James Boyle, free software advocates such as Richard Stallman, and law and economics scholars such as William Landes and Judge Richard Posner, ask: is ‘intellectual property’ the same kind of property as ‘tangible property’, and are legal protections for the latter appropriate for the former? And to that query, we can add: is ‘intellectual property’ an appropriate general term for the widely disparate areas of law it encompasses?
The answer to all these questions is no. And answering the latter question will help to answer the former.
Stallman is a computer hacker extraordinaire and the fieriest exponent of the free-software movement, which holds that computer users and programmers should be free to copy, share and distribute software source code. He has argued that the term ‘intellectual property’ be discarded in favour of the precise and directed use of ‘copyright’, ‘patents’, ‘trademarks’ or ‘trade secrets’ instead – and he’s right. This is not merely semantic quibbling. The language in which a political and cultural debate is conducted very often determines its outcome.
Stallman notes that copyright, patent, trademark and trade secret law were motivated by widely differing considerations. Their intended purposes, the objects covered and the permissible constraints all vary. In fact, knowledge of one body of law rarely carries over to another. (A common confusion is to imagine that an object protected by one area of law is actually protected by another: ‘McDonald’s’ is protected by trademark law, not copyright law, as many consumers seem to think.)
Such diversity renders most ‘general statements … using “intellectual property”… false,’ Stallman writes. Consider the common claim that intellectual property promotes innovation: this is actually true only of patent law. Novels are copyrighted even if they are formulaic, and copyright only incentivises the production of new works as public goods while allowing creators to make a living. These limited rights do not address innovations, which is also true of trademark and trade secret law. Crucially, ‘intellectual property’ is only partially concerned with rewarding creativity (that motivation is found in copyright law alone). Much more than creativity is ‘needed to make a patentable invention’, Stallman explains, while trademark and trade secret law are orthogonal to creativity or its encouragement.
Clubbing these diversities under the term ‘intellectual property’ has induced a terrible intellectual error
A general term is useful only if it subsumes related concepts in such a way that semantic value is added. If our comprehension is not increased by our chosen generalised term, then we shouldn’t use it. A common claim such as ‘they stole my intellectual property’ is singularly uninformative, since the general term ‘intellectual property’ obscures more than it illuminates. If copyright infringement is alleged, we try to identify the copyrightable concrete expression, the nature of the infringement and so on. If patent infringement is alleged, we check another set of conditions (does the ‘new’ invention replicate the design of the older one?), and so on for trademarks (does the offending symbol substantially and misleadingly resemble the protected trademark?) and trade secrets (did the enterprise attempt to keep supposedly protected information secret?) The use of the general term ‘intellectual property’ tells us precisely nothing.
Furthermore, the extreme generality encouraged by ‘intellectual property’ obscures the specific areas of contention created by the varying legal regimes. Those debating copyright law wonder whether the copying of academic papers should be allowed; patent law is irrelevant here. Those debating patent law wonder whether pharmaceutical companies should have to issue compulsory licences for life-saving drugs to poor countries; copyright law is irrelevant here. ‘Fair use’ is contested in copyright litigation; there is no such notion in patent law. ‘Non-obviousness’ is contested in patent law; there is no such notion in copyright law. Clubbing these diversities under the term ‘intellectual property’ has induced a terrible intellectual error: facile and misleading overgeneralisation.
Indiscriminate use of ‘intellectual property’ has unsurprisingly bred absurdity. Anything associated with a ‘creator’ – be it artistic or scientific – is often grouped under ‘intellectual property’, which doesn’t make much sense. And the widespread embrace of ‘intellectual property’ has led to historical amnesia. According to Stallman, many Americans have held that ‘the framers of the US Constitution had a principled, procompetitive attitude to intellectual property’. But Article 1, Section 8, Clause 8 of the US Constitution authorises only copyright and patent law. It does not mention trademark law or trade secret law.
Why then does ‘intellectual property’ remain in use? Because it has polemical and rhetorical value. Its deployment, especially by a putative owner, is a powerful inducement to change one’s position in a policy argument. It is one thing to accuse someone of copyright infringement, and another to accuse of them of the theft of property. The former sounds like a legally resolvable technicality; the latter sounds like an unambiguously sinful act.
Property is a legally constructed, historically contingent, social fact. It is founded on economic and social imperatives to distribute and manage material resources – and, thus, wealth and power. As the preface to a legal textbook puts it, legal systems of property ‘confer benefits and impose burdens’ on owners and nonowners respectively. Law defines property. It circumscribes the conditions under which legal subjects may acquire, and properly use and dispose of their property and that of others. It makes concrete the ‘natural right’ of holding property. Different sets of rules create systems with varying allocations of power for owners and others. Some grants of property rights lock in, preserve and reinforce existing relations of race, class or gender, stratifying society and creating new, entrenched, propertied classes. Law makes property part of our socially constructed reality, reconfigurable if social needs change.
Property is made not by the act of mixing labour with fallow land, as John Locke had it in 1689, but by the scaffolding provided by the surrounding legal system. Possession and labour – the much-revered foundations of Anglo-American property law – are insufficient to secure property. Land was acquired from Native nations by treaty; the labour of slaves was stolen; women worked, and still do, for free at home, rearing children, cleaning and cooking; adverse possession law shows a tension between possession and use; in family settings, personal arrangements override formal titles.
Legal systems of property are pragmatic and outcome-oriented. They bring about desired social ends through a historically contingent, evolving blend of rights and duties for owners. There is no ‘natural’ or ‘objective’ basis for property; we deem something property because better social outcomes are realised by doing so. If another, better social outcome presents itself, whatever the debate among contending social and political alliances that gave rise to such a notion, we revise our concept of property. The long history of private property usurped for public benefit – in times of war, say, or when building railroads – and the restrictions on the kinds of objects that can be bought and sold, offers adequate testimony for this claim. (The US Constitution’s Takings Clause requires that when such property is taken, rights-holders are adequately compensated.)
Knowledge and creative works are nonrivalrous, nondepletable goods subject to network effects
The US Patent Act of 1870 and Copyright Act of 1976 treat patents and copyrights as kinds of property, therefore suggesting that intellectual property rights should be akin to tangible property rights: that is, ‘perpetual and exclusive’. But legal protections offered to intellectual property assets are utilitarian grants – they are neither perpetual nor exclusive. (Tangible property is said to be perpetual because it is yours till you dispose of it.) Their terms are limited and amenable to nonexclusive use. Patent law offers exceptions for experimental use, and prior-use rights for business methods; copyright law for fair use; trademark law for nominative use; trade secrets for reverse engineering and independent discovery.
Intellectual property rights are granted reluctantly: here is your limited property right with exceptions for nonexclusiveness, so that your knowledge can flow back into the public domain, there to be built upon by others. Intellectual property assets are interlinked and interdependent. Granting exclusivity rights increases transaction costs in those domains. Whatever kind of property ‘intellectual property’ is, then, it is not like ‘tangible property’, a fact recognised in these differential legal regimes.
When Locke spoke of creating property by mixing our labour with the land, he had fallow land in mind. This is precisely not the nature of artistic and scientific creation, where the creator ‘mixes’ his ideas with those of others to create a new work. Think of the relationship between rock ’n’ roll and the blues, between Shakespeare’s Romeo and Juliet, and Baz Luhrmann’s, between older scientific theories and the newer ones that build on them. Knowledge and creative works are nonrivalrous, nondepletable goods subject to network effects. To control them like ‘tangible property’ is to reduce their social utility. The domain of the various bodies of law that make up ‘intellectual property’ is a very different kind of property, perhaps so different that it shouldn’t be understood as such.
Legal protections appropriate for tangible objects – as the drafters of the US Constitution were well aware – are a disaster in the realm of culture, which relies on a richly populated, open-for-borrowing-and-reuse public domain. It is here, where our culture is born and grows and is reproduced, that the term ‘intellectual property’ holds sway and does considerable mischief.
‘Property’ is a legal term with overwhelming emotive, expressive and rhetorical impact. It is regarded as the foundation of a culture and as the foundation of an economic system. It pervades our moral sense, our normative order. It has ideological weight and propaganda value. To use the term ‘intellectual property’ is to partake of property’s expressive impact in an economic and political order constructed by property’s legal rights. It is to suggest that if property is at play, then it can be stolen, and therefore must be protected with the same zeal that the homeowner guards her home against invaders and thieves.
Glib talk of ‘intellectual property rights’, then, concedes polemical ground to the monopoly rent-extractor by granting a certain perceived virtue to those who hold licences and rights. The rest of us are merely greedy and grasping grubbers for someone else’s property. But in so conceiving the domain of ‘intellectual property rights’, the notions of borrowing, reuse, reworking, remixing and constructive enhancement – all of which are needed for culture and science and art to grow – are lost in the semantic mire created by ‘property’. Things that are owned in the exclusionary way that the indiscriminate use of ‘intellectual property’ suggests cannot sustain art and science and culture.
Disaster has followed. Copyrights, intended to be temporally limited, have grown nearly without limit. Congress drastically increased copyright terms in 1976, and again in 1998. The latter piece of legislation was the infamous Sonny Bono Copyright Term Extension Act, passed thanks in no small measure to the Disney Corporation lobbying to retain exclusive hold over its ‘property’, Mickey Mouse, and not to allow it to pass into the public domain. Elsewhere, users of ‘intellectual property’ suggest that protections be passed on to a so-called heir: so that the notion of inheritance has been carried over from real estate and now, ‘copyright trusts’ battle for the intellectual property rights of the long-dead original holder, placing onerous restrictions on those who would seek to make derivative works based on material that should long ago have passed into the public domain. But if that rights-holder is not present, then the original motivation for that legal protection – the encouragement of the further production of artistic works by the artist – is clearly not met.
Intellectual property rights and tangible property rights were also explicitly connected in an amicus brief filed by law and economics scholars in the 2006 case eBay Inc vs MercExchange LLC in which it was argued that the patent of the online auction company MercExchange deserved the same protection as real estate because patent-infringement was analogous to trespass and land-encroachment. Such rhetoric encourages corporate research-and-development labs to stake out patent claims everywhere, and then to defend them aggressively. Those following in their footsteps end up spending more time applying for licences than standing on the shoulders of giants. Private property’s associated notion of exclusivity allows the owners of data-analysis algorithms (such as those that determine credit scores) to ask for, and receive, trade-secret protection, which influences our financial fates – but there is no question of examining them; they are ‘property’ and we cannot have access to them.
Reformers don’t advocate that anyone should be able to take a copyrighted work, put their name on it, and sell it
The resulting legal and economic landscape finds power concentrated in corporations with indefinitely extensible copyright terms, gigantic patent portfolios and politically influential trade secrets – each of which can trigger an endless series of litigious disputes in courts, and induce a chilling effect in the work of artists and innovators, and in the daily affairs of citizens. The indiscriminate use of ‘intellectual property’ has produced counterproductive legislation and policy bolstered by confused and misleading rhetoric directed at our cultural public domain, whose growth is discouraged by a new ‘enclosure movement’ that views culture as a domain of ownership and is keen to accommodate the rights of property owners. In this bargain, we, the users and future producers of culture, are compromised.
What about the common objection that without ‘intellectual property’ the proverbial starving artist would be at the mercy of giant corporations, who have existing market share and first-mover advantage? It is important to disaggregate the necessity and desirability of the protections of the various legal regimes of copyright, patents, trademarks and trade secrets from that of the language of ‘intellectual property’. Current copyright, patent, trade-secret and trademark law do not need to be completely rejected. Their aims are rather more modest: the reconfiguration of legal rules and protections in an economy and culture in which the nature of creative goods and how they are made, used, shared, modified and distributed has changed. Such advocacy is not against, for instance, copyright protections. Indeed, in the domain of free and open-source software, it is copyright law – through the use of artfully configured software licences that do not restrain users in the way that traditional proprietary software licences do – that protects developers and users. And neither do copyright reformers argue that plagiarists be somehow rewarded; they do not advocate that anyone should be able to take a copyrighted work, put their name on it, and sell it.
But copyright law does need amendment, to restrict terms of protection beyond reasonable limits, and to reconfigure ‘fair use’ appropriately to a domain in which artifacts such as books, music and film can be stored, distributed, edited, shared or modified in previously unimaginable ways, when a large number of copies can be made free of cost once an initial expensive original is complete, and so on. Similar considerations apply, for instance, in the domain of software development where computer scientists and software developers have long argued that the grant of patents for software algorithms unproductively inhibits research and development. Indeed, the presence of alternative economic models such as those of the free and open-source software movement suggest that, in the new digital economy, property rights based on tangible goods are likely to have only limited success, and indeed might inhibit innovation and production.
This public domain is ours to draw upon for future use. The granting of temporary leases to various landlords to extract monopoly rent should be recognised for what it is: a limited privilege for our benefit. The use of ‘intellectual property’ is a rhetorical move by one partner in this conversation, the one owning the supposed ‘property right’. There is no need for us to play along, to confuse one kind of property with another or, for that matter, to even consider the latter kind of object any kind of property at all. Doing so will not dismantle the elaborate structures of rules we have built in order to incentivise artistic and scientific work. Rather, it will make it possible for that work to continue.