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1. Did You Say “Intellectual Property”?@entrybreak{}It’s a Seductive Mirage {#did-you-say-intellectual-propertyentrybreakitsaseductivemirage .chapter}
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@firstcopyingnotice{{ Copyright © 2004, 2006, 2007, 2009, 2010, 2013,
2015 Richard Stallman\
 {This article was written in 2004 and published in Policy Futures in
Education, vol. 4, n. 4, pp. 334–336, 2006. This version is part of
@fsfsthreecite} 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.

According to Professor Mark Lemley, now of the Stanford Law School, the
widespread use of the term “intellectual property” is a fashion that
followed the 1967 founding of the World “Intellectual Property”
Organization (WIPO), and only became really common in recent years.
(WIPO is formally a UN organization, but in fact represents the
interests of the holders of copyrights, patents, and trademarks.) Wide
use dates from around 1990.

The term carries 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, the bias
introduced by the term “intellectual property” suits them.

The bias is reason enough to reject the term, and people have often
asked me to propose some other name for the overall category—or have
proposed their own alternatives (often humorous). 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 alternative names would be an improvement, but it is a
mistake to replace “intellectual property” with any other term. A
different name will not address the term’s deeper problem:
overgeneralization. There is no such unified thing as “intellectual
property”—it is a mirage. The only reason people think it makes sense as
a coherent category is that widespread use of the term has misled them
about the laws in question.

The term “intellectual property” is at best a catch-all to lump together
disparate laws. Nonlawyers who hear one term applied to these various
laws tend to assume they are based on a common principle and 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.

For instance, copyright law was designed to promote authorship and art,
and covers the details of expression of a work. Patent law was intended
to promote the publication of useful ideas, at the price of giving the
one who publishes an idea a temporary monopoly over it—a price that may
be worth paying in some fields and not in others.

Trademark law, by contrast, was not intended to promote any particular
way of acting, but simply to enable buyers to know what they are buying.
Legislators under the influence of the term “intellectual property,”
however, have turned it into a scheme that provides incentives for
advertising. And these are just three out of many laws that the term
refers to.

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’d be wise to assume that patent
law is different. You’ll rarely go wrong!

In practice, nearly all general statements you encounter that are
formulated using “intellectual property” will be false. For instance,
you’ll see claims that “its” purpose is to “promote innovation,” but
that only fits patent law and perhaps plant variety monopolies.
Copyright law is not concerned with innovation; a pop song or novel is
copyrighted even if there is nothing innovative about it. Trademark law
is not concerned with innovation; if I start a tea store and call it
“rms tea,” that would be a solid trademark even if I sell the same teas
in the same way as everyone else. Trade secret law is not concerned with
innovation, except tangentially; my list of tea customers would be a
trade secret with nothing to do with innovation.

You will also see assertions that “intellectual property” is concerned
with “creativity,” but really that only fits copyright law. More than
creativity is needed to make a patentable invention. Trademark law and
trade secret law have nothing to do with creativity; the name “rms tea”
isn’t creative at all, and neither is my secret list of tea customers.

People often say “intellectual property” when they really mean some
larger or smaller set of laws. For instance, rich countries often impose
unjust laws on poor countries to squeeze money out of them. Some of
these laws are among those called “intellectual property” laws, and
others are not; nonetheless, critics of the practice often grab for that
label because it has become familiar to them. By using it, they
misrepresent the nature of the issue. It would be better to use an
accurate term, such as “legislative colonization,” that gets to the
heart of the matter.

Laymen are not alone in being confused by this term. Even law professors
who teach these laws are lured and distracted by the seductiveness of
the term “intellectual property,” and make general statements that
conflict with facts they know. 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, procompetitive 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 Article I, Section 8, Clause 8, of the US
Constitution, which authorizes copyright law and patent law. That
clause, though, has nothing to do with trademark law, trade secret law,
or various others. The term “intellectual property” led that professor
to make a false generalization.

The term “intellectual property” also leads to simplistic thinking. It
leads people to focus on the meager commonality in form that these
disparate laws have—that they create artificial privileges for certain
parties—and to disregard the details which form their substance: the
specific restrictions each law places on the public, and the
consequences that result. This simplistic focus on the form encourages
an “economistic” approach to all these issues.

Economics operates here, as it often does, as a vehicle for unexamined
assumptions. These include assumptions about values, such as that amount
of production matters while freedom and way of life do not, and factual
assumptions which are mostly false, such as that copyrights on music
supports musicians, or that patents on drugs support life-saving
research.

Another problem is that, at the broad scale implicit in the term
“intellectual property,” the specific issues raised by the various laws
become 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.
Patent law raises issues such as 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 such matters.

Neither of these issues is solely economic in nature, and their
noneconomic aspects are very different; using the shallow economic
overgeneralization as the basis for considering them means ignoring the
differences. Putting the two laws in the “intellectual property” pot
obstructs clear thinking about each one.

Thus, any opinions about “the issue of intellectual property” and any
generalizations about this supposed category are 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, or various other different laws, 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 picture the term “intellectual property” suggests.
Consider each of these issues separately, in its fullness, and you have
a chance of considering them well.

### Notes {#notes .subheading}

-   See also “The Curious History of Komongistan (Busting the Term
    ‘Intellectual Property’),” at
    <http://gnu.org/philosophy/komongistan.html>.
-   Countries in Africa are a lot more similar than these laws, and
    “Africa” is a coherent geographical concept; nonetheless, talking
    about “Africa” instead of a specific country causes lots of
    confusion.[(1)](#FOOT1)
-   Rickard Falkvinge supports rejection of this term.[(2)](#FOOT2)

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### Footnotes

### [(1)](#DOCF1)

@raggedright Nicolas Kayser-Bril, “Africa Is Not a Country,”
24 January 2014,
<http://theguardian.com/world/2014/jan/24/africa-clinton>. @end
raggedright

### [(2)](#DOCF2)

@raggedright “Language Matters: Framing the Copyright Monopoly So We Can
Keep Our Liberties,” 14 July 2013,
[http://torrentfreak.com/language-matters-\
framing-the-copyright-monopoly-so-we-can-keep-our-liberties-130714](http://torrentfreak.com/language-matters-%3Cbr%3Eframing-the-copyright-monopoly-so-we-can-keep-our-liberties-130714).
@end raggedright

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