October 27, 2004

Why the term 'intellectual property' is a seductive mirage

Author: Richard M. Stallman

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.
Anyone wishing to think clearly about any of these laws would do 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, 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.

Is the term 'intellectual property' a fad?

According to Professor Mark Lemley, now of the Stanford University School of Law,
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 have 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 this means referring to restrictions
as rights, which is doublethink, too.

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

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).

All IP laws are different in every detail

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 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 some
other category, larger or smaller than "intellectual property." For
instance, rich countries impose laws on poor countries to squeeze
money out of them. These laws often fit the category of "intellectual
property" -- so people who question the fairness of these laws often use
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 describes
the 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 be
bought 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 public
policy issues raised by copyright law, or the different issues raised
by patent law, or any of the others. These issues arise from the
specifics, 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. 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, and anyone looking
at them in the shallow economic perspectives of overgeneralization
can't grasp them. Thus, any opinion about "the issue of intellectual
property" is almost surely foolish. If you think it is one issue, you
will tend to consider only opinions that treat all these laws the
same. Whichever one you pick, it won't make any sense.

If you want to think clearly about the issues raised by patents, or
copyrights, or trademarks, or even learn what these laws say, the
first step is to forget the idea of lumping them together, and treat
them as separate topics. If you want to write articles that inform
the public and encourage clear thinking, treat each of these laws
separately; 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 of this entire article are permitted
worldwide without royalty in any medium provided this notice is preserved.

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