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I'd be interested to know if you know of any academic research on the origins of the term and how /when it became predominant in the American legal community. So far the best information I found was a footnote in a paper by Mark Lemley, where he (or a co-researcher) ran Lexis searches for the term on a decade-by-decade basis. The results showed a very small number of uses of the term until the 1970s, followed by hockey-stick growth in the 1980s and 1990s.
The problem of IP terminology arises because there is an economic incentive to misrepresent copyright and patents as extending private ownership of published IP into the public domain.
Intellectual property may be intangible, easily reproduced information on a tangible medium, but it observes all the necessary criteria for private property.
Until however, it is published, whereupon it observes all the necessary criteria for public property.
What copyright and patents foolishly and unethically attempt to achieve is the pretence that the publisher retains a proprietary interest and the privilege of control over their published IP.
So, IP is either private IP, privately owned, or it is public IP, publicly owned.
Abusive malapropism occurs when private interests attempt to twist the meaning of IP in support of their claim to ownership of public IP.
Let's not forget it can work the other way too. Sometimes public interests attempt to demonstrate ownership and entitlement to private IP.
I wrote more on this here:
IP is Indeed Property
Second, look at the theories behind intellectual property to distinqiuish it with real property: tragedy of the commons, prospect theory, the problem of public goods, etc. These have little to do with the basis for real property (w/ the possible exception of prospect theory, but it is an *intellectual property theory* b/c it proposes specific policy recommendaitons for patents).
That these privileges apply to intellectual works does not make the privileges intellectual. The privileges are commercial. If they are transferable then they would more logically be termed commercial property. There may be an even more approriate name, but the property is sorely lacking in intellectual attributes.
A park or monument can be public property without needing to be consumed.
That a digital artwork cannot be consumed does not prevent it being public property.
Tragedy of the commons occurs not due to the commons being public property, but due to its capacity being exhaustible through consumption.
Purveyors of pulp entertainment may like to term digital artworks as content, and their audiences as consumers, but digital art is not actually consumable.
I agree wholeheartedly, but you should acknowledge RMS, who has a well-known essay on exactly this subject.
Not to link to his words on this issue, when the conclusion and reasoning is so similar to yours seems a bit odd.
Perhaps you weren't aware of his writing on ezxactly this issue?
EF
"Property" is a way of saying "thing." The addition of the word "real" to make the phrase "real property" helps distinguish between movable things and immovable things. There's no reason why we couldn't adapt it to things that are products of cognition and volition and call them "intellectual property." They have further distinct 'properties' that we should explore and discuss.
I think your objection is better aimed at people who use the term "intellectual property" to refer to intellectual property laws like patent and copyright. Imagine the same usage of the term "real property" - as in "I'm against real property." OK, why don't you throw yourself to the ground and beat on it until it relents . . . . What a person saying that probably means is "I'm against the doctrine(s) of real property law."
What they also might mean is, "I am against private ownership of real property." A second common mistake is for people to assume a thing has a certain ownership status because it is called "property." As you know, Locke distinguished between common property and private property. Saying "property" does not necessarily mean either. A problem is that people often use or assume the phrase "intellectual property" to mean private intellectual property.
Because of their differing natures, there is more common intellectual property than common tangible property. This means that people who assume intellectual property is owned are wrong more of the time than they are when they talk about other forms of property. Nothing about term "property" requires us to assume it has a certain ownership status - that's just a mental habit that needs curing.
If we decline to use the word "intellectual property," how would you refer to ideas and expressions that are not subject to patent and copyright law? As "public domain"? I don't think it's a good idea to name something by its status. Language works better when we have names for things distinct from their status. "Boy," for example, is a useful term for "male child." A boy might also be a "brother," "son," "friend" or "classmate" - each of these denoting a different status. Something might be my intellectual property or your intellectual property, or just "intellectual property," meaning only taht it is a thing produced by cognition or volition.
I think it's better to take people on a long journey through all the conceptual and intellectual steps, using the most natural language possible, than to shortcut the process by banishing certain useful terms. I agree that all of us could tighten up our language.
You probably have a better sense of the historical and philosophical roots of the word "property" than me, but I don't think that's how people use the term today. Merriam-Webster defines property as:
So I don't agree with you when you say that "nothing about term 'property' requires us to assume it has a certain ownership status." In my experience, in commonly accepted meaning of the word "property" does imply ownership status.
Indeed, I don't think I've ever heard someone use the phrase "intellectual property" in a context other than copyright or patent law. We don't describe our childrens' drawings or the songs we sing in the shower as our intellectual property. When people talk about intellectual property, they don't just mean intellectual work in general. They specifically mean intellectual works over which someone is asserting ownership.
I'm puzzled by your question about how we would refer to ideas and expressions that are not subject to patent or copyright law, because, as I said, I've never heard anyone talk about "intellectual property" outside of that context. Could you give me an example of a situation where the phrase would be missed?
RMS essay on why not use the term IP
The essay starts out:
"It has become fashionable to describe copyright, patents, and trademarks as "intellectual property". This fashion did not arise by
accident--the term systematically distorts and confuses these issues,
and its use was and is promoted by those who gain from this confusion.
Anyone wishing to think clearly about any of these laws would do well
to reject the term."
and goes on to make all the points Tim Lee makes above, and a few others, too.
I don't think appealling to a dictionary is necessarily a sound response. A dictionary adopts the most common usages, not the usages that are most philosophically or historically consistent. And try squaring that definition (and your claimed experience) with this sentence: "There's a whole bunch of abandoned property over there in that field."
I think that the term "property" in the sense Locke used it can be extended to encompass creations of the mind. I suppose I was a little inaccurate saying that people are "mistaken" in the way the use the term now - I was really arguing for a change to a cleaner use of the term. Again, people are using the phrase "intellectual property" as a shorthand for intellectual property law. Intellectual property is the subject of intellectual property law, just like real property is the subject of real property law.
Here's a sentence where the phrase "intellectual property" fits well, without there being a claim to ownership: "The Renaissance and Enlightenment periods bequeathed a wealth of intellectual property to posterity."
Now, if not "intellectual property," what do you call the pictures children draw and the songs sung in the shower? Is there a term for people's oeuvre? It's important to have one because whatever this stuff is is increasingly being collected, copied, stored, and reused. If we're going to talk about it and explore the meanings of the things happening with it, we've got to have a name for it.
I don't see any philosophical problem with using the term "intellectual property" to refer to intellectual creations more broadly, but given the baggage the term currently carries, I think you run the serious risk of being misunderstood as referring specifically to those things that receive legal protections. I think there are plenty of ways to talk about creative output (using terms like "knowledge," "culture," "creativity," etc) that are less likely to lead to confusion. Why not say "The Renaissance and Enlightenment periods bequeathed a wealth of knowledge and culture to posterity?"
FYI, Wikipedia has some interesting bits about the "IP" word: "The earliest use of the term "intellectual property" appears to be an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown. [...] The term's widespread popularity is a much more modern phenomenon. It was very uncommon until the 1967 establishment of the World Intellectual Property Organization, which actively tried to promote the term."
A quick Google News Archive search seems to confirm this: the use of the term "intellectual property" seems rather uncommon in the first half of the 20th century (compare with copyright, for instance). Also worth a look: this 1938 Time Magazine article in which the term "intellectual property" is used in a non-copyright/patent related context.
It remains the artist's property (in their control and ownership) until they give or sell it to another (when it becomes the recipient's intellectual property - without denying the fact of authorship), or copy it to another (when it becomes their shared IP).
If an artist publishes their IP (gives or sells it to another without confidence or contract) then it becomes public IP in so far as it is reproduced and distributed among the public.
Private possession of a published work does not entitle any member of the public to demand its surrender from anyone they know to have it (for that would be a violation of the right to privacy).
So the handwritten manuscript is art. The words thereon are the intellectual property.
It is only with the advent of reproduction technologies that we have started to need a term for the reproducible aspect of art.
Influenced by my study of privacy and personal information, I see information as billions of distinct items, many subject to different rules and treatments. We collect them, use them, hide them, display them, recombine them, and so on. Calling it all "knowledge" or "culture" is like insisting on the classes "earth, air, fire, and water" even though you've become aware of atoms and molecules.
I'm still confused. If the problem with "knowledge" and "culture" is that they're too general, how does the term "intellectual property" improve matters? Isn't that an argument for using the actual terms for the various types of content, like "song," "painting," "movie," "book," "fact," "invention," etc?
In the world of tangible things, we moved from "earth, air, fire, and water" to discovering the molecular, atomic, and sub-atomic constituents of things. We can do the same with intangibles, but we need a word for the constituent pieces that go into "content" or "songs" or what-have-you.
I think little items of intellectual creation recombine to make all these things. The closest word we have for these little things is "property." People collect, horde, give away, buy, and sell this stuff all the time, just like they do tangible property. But these things are distinct from tangible property, so a distinguishing adjective is needed. They're products of intellect. So how about we call them "intellectual property"?
Do you have a better word that describes the object of all this activity? A word we can use to build a theory of how information works in society?
Anyway, my point wasn't that we should erase "intellectual property" from our vocabulary entirely. My point was simply that we shouldn't use "intellectual property" when what we're really talking about is copyrights or patents. It sounds like we at least agree on that much.
This is because intellectual thought (or thoughtful discovery) is defined in this field as necessary for originality, and originality is the basis of copyright and patent (supposedly).
I agree that common usage of the word "property" has become fragmented, but if we're going to have useful communication, we would do better to stick to orthodox meanings.
What word or phrase would you use in place of "intellectual property"? We have a lot of people arguing against the phrase without anyone offering a substitute that conveys the same meaning.