Friday, 9 November 2012

The Intellectual Property Metaphor

There is no such thing as intellectual property.

Richard Stallman is probably the best known person who has made this argument. Stallman wrote:
It has become fashionable to toss copyright, patents, and trademarks—three separate and different entities involving three separate and different sets of laws—plus a dozen other laws into one pot and call it “intellectual property”. The distorting and confusing term did not become common by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely. [1]
Stallman's argument is technically correct. There really is, legally at least, no such thing as "intellectual property" (IP) in its own right. Rather, the term is an umbrella term, which brings together copyright, patents, trade secrets, trade marks, design rights, plant breeders rights and possibly others (depending on the jurisdiction).

Those items are brought together because they have similarities: they deal with proprietary rights (rights that can be enforced "against the world") over intangible things. Apart from this, these areas of law are largely unrelated. They do not share a common jurisprudence, historical origin or even a common purpose. However, this is changing, as more and more of a nation's economy becomes invested in these rights over intangible things, forcing both a rethink of how we manage such rights in parallel with an increasingly vocal effort to cement "intellectual property" into place.

Despite the arguments that "IP does not exist", most people seem to support the notion that it is not fair for others to benefit from someone's hard work. This idea of "unjust enrichment"[2] is arguably the one thing that does link all forms of intellectual property. It is unjust, it is argued, that someone should be able to profit from another's "sweat of the brow."

The sweat of the brow. It is a powerful metaphor, conjuring as it does the very real effort that is physically expended when we do physical labour. The metaphor easily lends itself to comparisons of another person reaping a farmer's crops, or stealing their cattle, or draining the water from their dam. When viewed in this way, we feel an emotional outrage at the idea that there are people who freely take an author's intellectual property for their own use and profit, with no benefit flowing back to the originator.

However -- it was just a metaphor. I've started to wonder if the unacknowledged use of metaphorical thinking is at the heart of our struggles with intellectual property. Apparently, I am not the first. Some very cursory searching (I refuse to call it "googling", for that is not a real word) has turned up some interesting reading[3].

The ultimate metaphor behind all of this of course, is the word "property" itself. To treat intellectual property ("IP") as property requires both an act of imagination and a suspension of disbelief (very similar to how we need to approach money in order for it to work). It also seems to require increasingly constrictive and aggressively enforced laws. As if they are trying to hold back a tide with just the hands of a million lawyers.

Acts of imagination are not inherently wrong. We do not complain about having to suspend our disbelief when someone hands us a scrap of paper that claims to be worth "100 dollars". We just call that a bank note and trust that it will hold some value. We also do not complain when our employer moves some imaginary numbers from their account to our account (which are also figments of our imagination and that of the banks), because we know and trust that something of value has been passed.

However, these acts of imagination and belief can cause problems when they are fundamentally at odds with reality. A very large amount of government intervention and social consent is required for the money system to operate. Crises in confidence (a collapsing of belief) in the money system are invariably catastrophic to their societies, at least in the medium term until belief in the system can be rebuilt. Consequently, the "creation" and distribution of money is heavily regulated (not as heavily as some people would like). Consequences for stepping outside this system (for example, printing counterfeit bank notes) is dealt with harshly.

What's interesting about money for me is that it does not rely on metaphor to work. We understand money in its own right. We have physical manifestations of it (notes and coins) which make it easy to learn as children. We understand the historical evolution of it, and why societies have evolved from using things of genuine direct value (eg grain) to proxies for value (eg cash) and finally to acts of mutually agreed imagination (bank accounts, cheques, credit cards and electronic transfers).

This is not so for IP. We continually rely on metaphors to define it, argue about it and enforce its existance. We speak of "theft" and draw direct analogies to car stealing and shop lifting. Even the use of the very word "property", with all the legal baggage that word carries, is using a metaphor (albeit, one with a sophisticated legal jurisprudence behind it). I suspect that most of our concepts from copyrights and patents have metaphorical origins.

Is it possible to understand IP "in its own right?" Is it possible to define a legal framework that matches both our instincts to protect peoples hard work, as well as our needs to share and exchange information to both improve our societies and enrich our cultures?

What I'd like to do next is explore the origins and stated aims of three kinds of intellectual property: copyright, patents and trade marks. I don't intend these to be to a scholarly standard (there's an alibi for you!). This is, after all, just a blog to dump some thoughts. Looking at the origins and stated aims of these distinct areas of law might help me to articulate a way to approach IP with a common thread. A theory of law (jurisprudence) to support our instinctive reaction against free riders.


Footnotes:
  1. Source: Did You Say "Intellectual Property"? It's a Seductive Mirage, Stallman R, online.
  2. I'm using the term "unjust enrichment" here in a lay sense, and not in the equity sense, although that might be a useful place to look for a new approach to IP. 
  3. Indeed, it's been discussed for some time. See for example, Philosophy of Intellectual Property, The; Hughes J, 77 Geo. L. J. 287 (1988-1989). See also Pirates, Parasites, Reapers, Sowers, Fruits, Foxes... The Metaphors of Intellectual Property, Loughlan P, 28 Sydney L. Rev. 211 (2006). (subscription required, links open in new windows.) 
[This post was edited (minor changes) after it was first posted.]

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