Problematic Language: Intellectual Property Rights

Language is important. It shapes our view, our thinking. It’s necessary for our expression and understanding. It’s important to pay attention to the terms we choose.

The commonly used phrase “intellectual property rights” is loaded and problematic.

Intellectual property rights: Ambiguous; it lumps copyright, patent and trademark law all under the same banner while there are completely separate areas of law.

Intellectual property rights: This assumes what needs to be proven. The notion that ideas should be treated as property is entirely unnatural, wholly artificial. Even if we treat them as property, it’s in a fundamentally different way (example) than we treat traditional property. As Thomas Jefferson eloquently spoke (found via Techdirt):

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

Intellectual property rights: I find this often gives people the impression that artists have some sort of natural rights over their works that need to be defended. There are no natural rights at stake here. The types of laws in question are artificial structures established with the (original) intent of encouraging the creation of works for the good of society. The fact that it’s artificial doesn’t mean that it’s necessarily wrong or bad, but to suggest it’s a natural right is to discourage critical examination, hiding behind a misconception of fairness and a protection of rights. That’s not necessary from the use of the term ‘rights’, but an over focus on the term often leads to the ‘natural’ part seeming implied.

If we avoid the term “intellectual property”, as Richard Stallman suggests, what other term are we to use it its place? Mike Masnick lists a bunch of alternatives (including Stallman’s suggestion to refer to copyright, patent and trademark law separately), but concludes that they all have their own problems and that a more cautious use of “intellectual property” is the answer since it’s a convenient shorthand for the general category.

Personally, I tend to agree with the GNU Project on this one and try to avoid the term at all costs. When I do use it, I try to put it in quotes and explain – even just briefly – why it’s inadequate and misleading.