Whenever someone comes along and suggests re-ordering a well-accepted way of arranging things, it’s always good to scrutinize what they say carefully. Sometimes they may turn out to be a Darwin or a Copernicus. But other times, of course, they may not.

Richard Stallman tries just such a thing in respect of the term ‘intellectual property’.

It has always kind of bugged me, especially after seeing him push the theme (or meme) in one of his public lectures with vigour and eloquence. Because, basically, while he has germs of the right idea in there, he is mostly wrong. And his errors detract from a good cause, instead of assisting it.

His thesis is that the term “intellectual property”: (1) “systematically distorts and confuses” things; (2) that its use is pushed “by those who gain from this confusion”; and (3) that “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”.

Well, I don’t think (1) and (2) are right, and only the last bit of (3) is.

“Intellectual property”

The term “intellectual property” has only really come into vogue relatively recently. In the early part of the 20th century, and even into the 1950s, it was common to speak of “industrial property”, which covered most things other than copyright: that is, patents, trade marks and designs. Those types of rights clearly had an industrial flavour, whereas copyright was (at the time) still closely bound up in literary or artistic works – ie creative arts in the traditional sense.

The term is now used to describe various rights that have the common elements of being intangible, and operating in respect of the products of the human mind – as opposed to intangible rights relating to land (such as rights to enter or cross the land; or to pick fruit or take wood from it), or to personal property, or to governmental entitlements such as veterans’ rights or pension entitlements.

It does not have, and is not intended to have, some precise, scientific meaning. It is not a mathematical set, where membership imports particular consequences. It is broad-brush, used as a convenience, to avoid having to say “copyright, patent, registered designs, circuit layout or semiconductor rights, plant breeder’s rights, trade marks, etc” when having to describe what you’re on about. A book on “intellectual property law” covers diverse topics with a common theme, just as a book on “housing law”, “criminal law” or “administrative law” does. Telling someone you practise “IP” is similar to telling someone you practise “criminal” – even though each practice could be one of a myriad of things.

Any lawyer or layman hearing the phrase should think of the right ballpark, just the same as a techie hearing “computer”, “network” or “optical storage” will know roughly what one is talking about, despite the elasticity and context-specificity of each term, and despite how much the details may differ.

Despite what Stallman possibly seems to think, there is no legal politburo insisting on some rigid defined term. It’s not a “mirage” designed to foist things on people behind their backs. It’s not Orwellian double-speak. It’s not conclusionary, hiding a payload of results inside an innocuous-sounding name. It’s just an artifact of human nature, to categorise with just the right balance between brevity and detail.

Common thread, different details

Where Stallman is correct is to note that the different things described as “intellectual property” have different natures. Generalising very broadly, patents are concerned with inventions; copyright is concerned with “works”; trade marks are concerned with indications used to denote the source of goods or services.

Each has different formalities: patents have to be applied for; copyright arises automatically.

Each has a different scope of protection: patents have short, fat protection; copyright has long, skinny protection (although it is growing fatter); trade marks have indefinite, quite fat protection, subject to ongoing requirements as to use.

The differences don’t stop there. Different remedies are available in respect of infringement of each right. Different rules can apply to selling or licensing the rights. Different rules can apply to who can apply for, renew, or sue under the rights.

However, all that the above differences mean is: don’t generalize broadly about intellectual property. (Unless you are generalizing about the differences of each component form, of course :-) ). Try not to even generalize.

That is just an admonishment against sloppiness of thought. The term “intellectual property” does not allow conclusions to be drawn about the legal consequences of any nominated act (“if I do x will I be in trouble?”). To find those consequences, you have to look at the rules governing the specific type of intellectual property in issue. Thankfully, Stallman does advocate this, and quite well. (“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.”)

Diversity of content is not, however, a good reason to avoid using a broad, descriptive term. Otherwise we should avoid talking about “operating systems”, because we cannot derive a particular, specific answer for any nominated course of action (“if I make a copy of my operating system, will I be in trouble?”).

One advantage to treating them under the same expansive umbrella is that they do interact: copyright and registered designs, for example, have an interplay that, say, copyright and housing law don’t. One common theme is that things eligible for two forms of protection can sometimes only be given one of them; any attempt to go for the second may not work, or worse.

Common thread, one underlying (important) similarity

Beyond those differences, one further thing should be noted: they are, indeed, all property.

Why? Because statute says so.

This is where the law gets confusing to non-lawyers. It’s a shame, but it’s probably unavoidable. The correct concept is pretty simple, however, and it’s best illustrated by copyright in a literary work. It is this:

The property in copyright is in the right itself; it’s not the copyrighted work.

Let’s say you write the Great American Novel. You probably own the paper it’s printed on. You probably own the toner or ink that is stuck to the paper. What you don’t own is the words. Everyone else in the world is free to use the words you have used. What they can’t do, is copy your arrangement of the words.

What copyright gives you is the right to control various actions done in respect of the arrangement of words you have chosen. The owner of copyright can control who reproduces those words, and who makes adaptations of them.

That right to control things is said by statute to be property. As far as rights go, that’s pretty much it. If statute says it’s property, it is.

That’s not an odd result, however. Many rights are property: say you have the right to mine coal on a piece of land that you don’t own, or a right to enjoy the peaceful seclusion of your back yard without people traipsing through it. That right can amount to property, such that governmental attempts to take over that right can fail on constitutional grounds.

It’s not a bad result either. Rights that are property can be assigned away, or transmitted by a will. They can be protected against governmental overreaching, and can be identified among the mixed loot of a fraudster and given back to the rightful owner.

What is difficult for most people – and even many lawyers – is the concept of something intangible being property. The problem is using that land is “obviously” property, and goods are “obviously” property, but how can my say-so, be “property”? There’s nothing to hold.

But if you think of it as being “the right to stop someone copying my computer program and selling it as their own”, it’s not much different from “the right to stop someone walking across my lawn because they want to, and without some justification (such as a girl scout coming up the path to knock on my door)”. Both of those “rights” are intangible, but both are based on real things (arrangement of code; a piece of land) and both can be bought and sold, or permission given to some others to do things with it. (The legal term in this connection being a “licence”; “licence” == “permission to do something that I can otherwise stop you doing”).

For all of the above, of course, the devil is in the details. Each different scenario has wrinkles, just as each different form of intellectual property has differences. But the basic point is the same. Being able to exclude someone from doing something is quite well suited to being “property”.

Not liking “intellectual property” because you don’t like where the law is going

One of the other common threads behind intellectual property is that it is predominantly statute-based. The biggies of intellectual property are based around statute, with (other than for trade marks) a limited role for the historic common law to play. Copyright and patents both are found in statutes in the US, UK and Australia.

What legislatures do, however, is change statutes. They add and subtract; and they modify what’s there. There has been much tinkering with intellectual property statutes recently, and on balance this has resulted in new and larger rights available to rights-holders, particularly in the area of copyright.

The desirability of these changes is a hot topic, and it’s a political topic. The restriction upon the rights of end-users is probably why Stallman would prefer to rename “intellectual property” as “legislative colonization”. Unarguably, modifications to copyright statutes have taken away the ability of users to do things.

However, the suggested renaming is silly, because many – perhaps most – areas of life are subject to the same touching hand of statute. Should we also call federal laws that affect pension rights (eg ERISA) or bankruptcy reform “legislative colonization” instead, and lump them along with copyright etc? I don’t think so either.

Almost by its nature, statute changes things. But it changes things across a number of areas. Focussing on only one area in which you disagree with those changes has the tendency to class all statutes as bad. That is sloppy thinking.

You can be hostile to (or supportive of) various changes to different pieces of intellectual property. You can also even be hostile to the very existence of one or all of its pieces, or to some or all of the rights that each piece involves. But each is an altogether other argument from arguing about having a term that roughly describes the area you’re speaking about.

If you want a take-home message for a techie, it’s probably this: “intellectual property” is like “operating system”. Each is a label for a number of members, each of which can be diverse and quite different from the others. There is no defined, unambiguous criteria for membership, so that there may be an argument as to whether any particular thing deserves the label, or at what level of abstraction or detail that thing the label is applied (is it just the kernel, or a GUI too; what kind of kernel; what bits of the kernel; what about the file system?).

Each component described by the label generally serves a similar function (running a computer; serving the public good by striking balances between creators and users via imposed monopolies), even though the specifics of how each is set up can be wholly different (think of the philosophy of your OS of choice versus its competitors; then think of the balance struck between creators and the public in copyright versus in patent). You may disagree with the way a component works, or how it has been developed. You may think that it shouldn’t even be allowed to exist at all.

But what you can’t do is expect a label or other broad term of convenience to tell you much, if anything, of what goes on at a lower level. And you can’t say that, just for that reason, the label or term shouldn’t exist at all.