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Renaming Intellectual Property

In If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?, Techdirt writer Mike Masnick discusses various proposd replacements for the misleading term “intellectual property.” Contenders include “intellectual monopoly,” “intellectual privilege,” “imaginary property,” and “None of the Above.” There are problems with each of these. Masnick concludes: “In general, because of common usage, I don’t think it’s bad to use the phrase “intellectual property” just so that people know what you’re talking about — but we should be careful to not use it in a way that reinforces the concept that it’s property just like other kinds of property.”

I tend to agree. What IP law does it give legal (positive) rights to people to try to protect or stimulate innovation or creation. It gives them rights in innovations, creations, recipes, or patterns. If one keeps in mind the distinction between natural and positive rights, then it’s easy to see that laws do create legal rights, and of course all rights are, in the end, types of property rights. So IP laws do create (positive, or legal) (property) rights. And they do have to do with products of the mind, or intellect. So “intellectual property” rights seems fine to me, if one realizes that there is a difference between positive right (positive law) and natural rights (natural law).

Still, some ideas came to me (and I own them, heh heh!). It would be nice to take the word “property” out, and just refer to the rights conveyed. Copyright gives authors of original works certain (legal) rights to their “works” or creations. Books, songs, paintings are regarded as “original works of authorship”. There is an element of “creativity” to these things. Patents give certain (legal) rights to inventors of practical inventions–methods or processes for doing things (recipes) or arrangements of matter (designs). What do inventions and “works of authorship” have in common? One is practical, aimed at some gizmo or method that produces a practical result (a machine or process). Another is aimed at “creative” things–paintings, novels, songs. J. Neil Schulman, in his neo-Randian/Galambosian [I don't know if he would accept this label] IP theory groups them all under the term “logorights,” where the “logo” refers to a “pattern”. I think this is a pretty good description: a recipe is a type of pattern; as is the design for a practical machine or device. Likewise, original works like paintings, music, etc., are obviously representable digitally, as patterns. Copyright and patent law clearly grant rights … to whom? To creators–inventors and authors–of “logos”–patterns, such as machine designs, process steps, or the patterns that represent the song, painting, etc.

So as much as I disagree with Schulman’s justification for “logorights,” the term is a pretty good one–except that it is so arcane. A variation on it using more standard terms might be better: pattern rights, or perhaps innovation rights. Or, to make the label a bit less “neutral,” replace “rights” with “monopolies” or “privileges,” since that is what is being granted by the state. So we have “pattern monopolies” or “pattern privileges,” “innovation rights” or “innovation privileges.” I think I like “pattern monopolies” the best.


Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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