Intellectual Product, not Property

Note: This post originally appeared 6 July 2016. It has not been modified past this note. The original comments still appear below.


It appears to be the popular position to argue against “intellectual property,” based on the class readings, so please allow me to argue for it, at least in part.

In most cases, I argue that words have meanings and should be used accordingly. Thus if something is to be called “intellectual property,” it should be both intellectual and property, or perhaps the intersection of the two. Google gives us these definitions, edited to fit the format here:

intellectual: of or relating to the intellect, appealing to or requiring use of the intellect, possessing a highly developed intellect; a person possessing a highly developed intellect.

property: a thing or things belonging to someone, a building or buildings and the land belonging to it or them, the right to the possession, use, or disposal of something, ownership, possessions collectively, an attribute, quality, or characteristic of something

Without descending into the legal arguments about what property is—I leave that entirely to Kinsella—let’s look at what this says. “Intellectual property” is something of or relating to the intellect that a person has the right to the possession, use, or disposal of… ownership [of]. As we have read, ownership of things of the intellect makes no sense. I agree. The right to the possession, use, or disposal of things of the intellect does make sense, though, and I will argue for that here.

At this point I need to make two distinctions in my argument.

First, it matters what the “property” in question is: ideas are different from products of art.

Second, it matters who the subject of the property is. I believe that IP rights should exist for individual persons, not corporations, and only for the initial creator of the thing being protected. (My argument here against corporate ownership is similar to that against Citizens United.)

On the first point, I would argue that intellectual property should be reconsidered as intellectual product. Here is where the distinction lies between ideas and art. It has always been acceptable to borrow ideas from other writers, but never to copy their words. And while you can claim that everything is a remix, and therefore there is no authorship, I would argue that authorship is the art of the elegant remix, which results in an original work, an intellectual product.

Ideas should not be protected. Ideas that are protected are stunted ideas: they cannot spread, grow, interact with other ideas, or develop. When I think about the spread of ideas, my first thought is of the silk road, as we were taught in 8th grade. When I think about MV5BMjE4MTU2MTEyOF5BMl5BanBnXkFtZTcwMDcxNzQzMw@@._V1_SY1000_CR0,0,677,1000_AL_suppressed or stunted ideas, my first thought is the movie V for Vendetta: ideas are greater than the people who carry them. Although we may associate a particular idea with a particular person, it is the idea that lives on. Protecting an idea by law does not protect the idea: it stunts the idea and protects the vanity of the person who claims to own it.

Art, by contrast, should be protected. If a person creates a work of art, cynical as we may be about remixing, that person should have the right to profit from that work of art in the same way that a builder profits from a house or a baker from a loaf of bread. If I write a poem or an essay or a story, I should be able to profit from it and control its distribution.

Now, an artist can profit from his or her work by sale of the work. I often recall the story that Julia Ward Howe sold The Battle Hymn of the Republic—a song we probably all recognize 155 years after it was written—to The Atlantic Monthly magazine for $4. Whether or not she profited from its later republishing and use, I do not know. But like the builder above, she created a product and sold it. You might say that she has no more right to it thereafter.

In a different situation, I create works (like this website)—I wouldn’t call them art—as a product of my employment. I do not profit from their use, but I am compensated for the time and effort I put into producing them. This is much like the baker above, who might not profit from each individual loaf, but might make a living from his ongoing work.

In either case, the artist or author profits from his or her creation. In the first, it is by direct sale. In the second, it is by salary. Ownership of the product is not the issue: the creator creates and disposes of the intellectual product as he or she sees fit.

I hold that the right to control the intellectual product is not transferrable to another person or to a corporation. If the creator of the intellectual product sells the product to a person or a corporation, that product does not become the buyer’s property. While the buyer can profit from the intellectual product‘s use, the buyer does not have the right to control its use or distribution, since the buyer’s intellect did not create it.

This argument breaks down quickly, I’m afraid.
This may be a fruitful point for discussion.

Which brings me to my second point— This, to me, is a question of fairness for original authorship. If I publish a poem or an essay or a story, that intellectual product is mine, not the publisher’s. The publisher did not create it; the publisher only gave it a medium for expression. Once published, the publisher has no right to control the sharing and use of the intellectual product, nor to attribution. Credit should be attributed to the author.

Likewise, when I create something in the course of my daily work, it does not become the intellectual property of my employers. They did not create it. They have no right to control the sharing and use of the intellectual product, nor to attribution. Credit should be attributed to the author. Their benefit, for which they paid, came in their free right to use the intellectual product, but it does not extend over the intellectual product.

Thus, if a person creates a product by his or her intellect, he or she has the right to share that product for his or her own profit. Once shared, no one has the right to control future sharing. Further, no corporation or individual buyer has the right to claim “intellectual property rights” over the product of another person’s intellect.

The choice, then, lies with the creator of the intellectual product: how should the product be shared with the world? Should it be shared freely, or should its first use be sold to another individual or a company? Should it be published or kept private? Once published, there is no controlling who will use it or benefit from it, but anyone who copies or reproduces it should give credit, if not payment, to the original creator.

The question of attribution arises here. It is always appropriate to attribute one’s ideas to their sources. Likewise, reproduced art should always be attributed to its creator or author, if known. The responsibility seems to fall on the conscience of the end user. It is here that perhaps the law should compel users and remixers to give credit where credit is due.

2 replies on “Intellectual Product, not Property”

I love your comments;
“Ideas should not be protected. Ideas that are protected are stunted ideas: they cannot spread, grow, interact with other ideas, or develop.”
“Protecting an idea by law does not protect the idea: it stunts the idea and protects the vanity of the person who claims to own it.”
“Ownership of the product is not the issue: the creator creates and disposes of the intellectual product as he or she sees fit.”
Very well written. I totally agree with these comments.
With the third quote I believe this relates to the Bayh-Dole Act of 1980 where faculty from Purdue University in Indiana contacted their senators (Bayh & Dole) because their access to their work they created was restricted because it was federally funded and so it became property of the federal government. All they wanted was access to their work.

I’m still trying to grok how shifting from “intellectual product” to “intellectual property” really changes the argument(s)? Not that I’m disagreeing with you…I myself am not wholly against the concept of intellectual property, only feel that the political and legislative apparatus that has sprang up around it is based on outdated and/or mistaken assumptions in light of technological change (and that it has gone far afield from the intent of the framers of the constitution).

So, I think I find myself largely in agreement with you. But no matter how I look at it, I don’t see any real difference if I replace your “intellectual product” with the traditional “intellectual property?” Can you choose a few examples and explain mor e about the difference you see?

I want to note, though, that I think there can be inherent value in changing the term(s) simply to try to drop some connotative baggage. In this way, “intellectual product” makes sense. But it doesn’t seem to have the same kind of shift as, say, Linnea’s notes about the term “intellectual privilege.”

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