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Did You Say "Intellectual Property"? It's a Seductive Mirage

by Richard M. Stallman

 [image of the Head of a GNU]

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.

One effect of the term is 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, these companies have worked to make the term fashionable.

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

Those who would prefer to judge these issues on their merits should reject a biased term for them. Many have asked me to propose some other name for the category--or proposed alternatives themselves. 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 replacements are an incremental improvement, but it is a mistake to replace "intellectual property" with any other term. A different name could eliminate the bias, but won't address the term's deeper problem: overgeneralization. There is no such unified thing as "intellectual property". It is a mirage, which appears to have a coherent existence only because the term suggests it does.

The term "intellectual property" operates as a catch-all to lump together disparate laws. Non-lawyers who hear the term "intellectual property" applied to these various laws tend to assume they are instances of a common principle, and that they 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 a work of authorship or art. Patent law was intended to encourage publication of ideas, at the price of finite monopolies over these ideas--a price that may be worth paying in some fields and not in others. Trademark law was not intended to promote any business activity, but simply to enable buyers to know what they are buying; however, legislators under the influence of "intellectual property" have turned it into a scheme that provides incentives for advertising (without asking the public if we want more 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 had best assume that patent law is different. You'll rarely go wrong that way!

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 are "intellectual property" laws, but not all; nonetheless, people often grab that label because it has become familiar to them, and misrepresent the nature of the issue. It would be better to use a term such as "legislative colonization" which gets to the heart of the matter and avoids misrepresenting its extent.

Laymen are not alone in getting confused by this term. Even law professors who teach these laws are 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. 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, pro-competitive attitude to intellectual property. They knew rights might be necessary, but...they tied congress's hands, restricting its power in multiple ways."

That statement refers to the article in the US Constitution which authorizes copyright law and patent law, but that article has nothing to do with trademark law. The term "intellectual property" led that professor into a false generalization.

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 artificial privileges for certain parties, and ignore their substance--the specific restrictions each of them places on the public, and the consequences that result. This encourages an "economistic" approach to all these issues, and economics, as it often does, operates as a vehicle for unexamined values (such as, that amount of production matters, while freedom and way of life do not), and factual assumptions that are only slightly true (such as, that copyright on music supports musicians, or that patents on drugs support life-saving research).

To one who views at such a broad scale, the specific public policy issues raised by copyright law, or the different issues raised by patent law, or any of the other laws, are 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. But patent law raises the issue of 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 that. Neither of these issues is just an economic issue, but they are not similar, so anyone looking at them in terms of economic overgeneralization will get them wrong.

As a result, any opinion about "the issue of intellectual property" is 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, 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 economics that 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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