Intellectual Rights, not Intellectual Property

David A. Wheeler

2011-04-01 revised 2012-02-09

Never use the the terms “intellectual property” or “intellectual property rights” — they are dangerously misleading. Instead, use terms such as “intellectual rights” or “data rights” (replacing “intellectual property rights”), and use terms like “intellectual works” (replacing “intellectual property”).


In many legal circles it’s popular to use the term “intellectual property” or its sibling, “intellectual property rights”. Don’t do it; here’s why.

Intellectual works are not physical works

Terms such as “property” and “ownership” often confuse non-lawyers when they’re talking about intellectual works. Intellectual works, including software and documents, are fundamentally different from physical property, because they can be consumed by one consumer without preventing simultaneous consumption by others (economists call such things “non-rivalrous”).

Yet to many non-lawyers, the term “property” implies that if one person uses the work, no one else can possibly use the work simultaneously. If I take your car, you have no car. This isn’t true for intellectual works; if I copy some of your information, you still have the information! The word “property” misleads non-lawyers, and even some lawyers, in a fundamental way. Many lawyers do understand that the term “property” doesn’t necessarily mean physical things, but non-lawyers need to understand their rights, so you should use a clearer term like “rights” instead.

You will almost certainly misunderstand your rights and ask the wrong questions

When people want to use software or data, if they’ve been brainwashed with the term “intellectual property” they will typically ask “who owns the intellectual property?” This is even true for some lawyers, who should know better. Yet the correct question in nearly all cases is, instead, “who has what rights?” That’s not just a name game; this has real impact.

If your first question when encountering community-developed materials is “who owns this intellectual property?” then you will almost certainly fail to understand your rights when you encounter open content such as open source software and many Creative Commons works (such as Wikipedia). Open source software is now widespread; billions of dollars of effort have been spent developing open source software. Similarly, community-developed data such as Wikipedia are massive. Asking “who owns Wikipedia?” typically demonstrates ignorance, not wisdom. Yes, these works often have copyright holders, but in nearly all cases, the identity of the copyright holders (if there are any) is irrelevant. In most cases you don’t care who holds the copyright, or if there even is a copyright. If there is a copyright, in these kinds of works the copyright is often held by a wide variety of contributors, each of whom only holds a small piece; merely contacting them would be a major and useless effort. Instead, in most cases what you care about is, “what am I allowed to do with this?” In other words, the only thing you normally care about are your rights.

There has been a rapid rise of a open source software, which is a commercial approach, and more generally a rapid rise in the development of Free Cultural Works. At no time has the term “property” been the right topic in most cases, but today, it’s even more important to focus on “rights” as more and more works are released with grants of generous rights.

The term “intellectual property” also leads some people to the wrong conclusions about U.S. federal government contracts. As I show in my article “Publicly Releasing Open Source Software Developed for the U.S. Government” , often a party does not hold copyright on works, but it has essentially the same rights. In most cases, when the government pays for software development, it doesn’t hold the copyright, but it has the same rights as the copyright holder (because it often has “unlimited rights”). Finding out who holds the copyright gives a very misleading picture on who has what rights. Because of this potential confusion, government contracts typically use the term “data rights” instead of “intellectual property rights”; the term “data rights” is much less confusing (e.g., see the FAR especially FAR 52.227-1 through FAR 52.227-23). Unfortunately, lawyers who are used to the misleading term “intellectual property” are trying to change the terminology in the DoD, even though this would make the DoD terminology both misleading and inconsistent with the terminology used by the rest of the federal government (see the PDF and HTML). I hope this doesn’t happen, because I think it will lead to more (not less) confusion. “Data rights” is a perfectly fine term, and far clearer than the misleading terms “intellectual property” or “intellectual property rights”.

In sum, if you ask “who owns the intellectual property” you’re really asking “who is the copyright or patent holder?” As a result, you’ll typically get the names of the copyright holders or patent holders. But usually what you want to know is, “can I do X?”, and in that case, you need ask what your rights are. Even if you have to ask someone for the rights, it’s still not right to ask “who is the holder”, because someone else may have the right to grant you rights. This often happens in government contracts; often the government isn’t the holder of the copyright or patent, but has the right to give others rights. Except for specialized circumstances, you should be asking about rights.

This problem is so endemic that I wrote a separate essay just on this topic: Ask not who holds the copyrights.

The term “intellectual property” may mislead law-makers and law-enforcers into making bad laws and policies

As the Electronic Freedom Foundation (www.eff.org) explains, “the use of the word ‘property’ ... can mislead lawyers, judges, policymakers, and interested citizens into thinking that copyrights, patents and trademarks should be treated like real property… it is no coincidence that, from the dawn of copyright law in England in the 1700s, those pushing to expand copyright have used terms like ‘literary property’ ”.

From an economic point of view, writings and inventions have the “problem” that anyone can copy them relatively cheaply. If they are copied too easily, then authors and inventors have no incentive to write and invent.

Governments around the world implement subsidies called “copyrights” and “patents” to incentivize innovation. And yes, these are subsidies; a subsidy is “a form of financial assistance paid to a business or economic sector”, and this grant of special privileges to the author or inventor is very definitely a form of financial assistance. (If it didn’t provide them financial assistance, it wouldn’t do any good!) Being a subsidy isn’t necessarily wrong; the question is whether or not the subsidy provides a benefit to society significantly greater than its costs.

The U.S. Constitution does not require but does specifically authorize this subsidy in Article I, Section 8, Clause 8. But note that intellectual works and rights are treated very differently than physical works and rights. As mandated in the U.S. Constitution, exclusive rights may only exist for “limited times”. The U.S. founding fathers understood that intellectual works are fundamentally different than physical works, and explicitly forbid perpetual monopolies (making intellectual rights quite different from the ownership of physical property). A letter by Thomas Jefferson to Isaac McPherson (13 Aug 1813) states (focusing primarily on patents), “It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs... 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... 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... Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody... England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea... [Other] nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices... Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not. As a member of the patent board for several years, while the law authorized a board to grant or refuse patents, I saw with what slow progress a system of general rules could be matured.”

This need to limit the time of monopolies was eventually understood in England’s parliament, too. Thomas Babbington Macaulay’s speech to the House of Commons, February 5, 1841 discussed the trade-off in developing copyright law as, “It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.”

Let me clear: Some people use these terms without any untoward motivations. Many lawyers use the term “intellectual property” or “intellectual property rights” simply because those are common technical legal terms. And it’s fair to note that historically, intellectual rights were developed in part through analogies with property law, so there are non-malicious reasons that some people use these terms.

But I believe at least some people use the the term “intellectual property” not for those reasons, but because they wish to mislead lawmakers and judges into believing that intellectual works must be treated the same way as physical property. The continuous copyright extensions in the U.S. are completely unjustifiable from the point of view of encouraging innovation. It’s highly unlikely that Mr. Walt Disney will be creating new Mickey Mouse cartoons today; he happens to be dead. So adding another 20 years of monopoly rights over Steamboat Willie makes no sense; he made Steamboat Willie for the far fewer rights granted in his day, and the extended monopoly rights have inhibited many other people from building on his work. Bound by Law provides a wonderful summary of the serious problems that excessive copyright restrictions are creating. What we need instead is a balanced approach, one which rewards authors and inventors just enough so that they will be encouraged to create, but limits their control (including the length of time they have a monopoly) so that others can build on that work. Terminology that subtly redirects people away from this truth, such as “intellectual property”, can actually harm innovation because it can misdirect people from the truth.

It is known by many that if you can get people to use certain phrases that imply a certain view, that you can quietly convince people without their realizing it, because you have quietly managed to insert a worldview that is unlikely to be analyzed. This trick is sometimes called “framing”. Basically, by creating a term that subtly makes people think a certain way, you can decrease the likelihood of that they will examine the issue closely (if they did, they might realize that their presuppositions are false). I think that the phrase “intellectual property” is a great example of framing — by using a dangerously misleading term, those who would gain from a broad misunderstanding can quietly mislead others.

Some people want a nice simple term for the set of laws covering intellectual works (including copyright, patent, trademark, and trade secret law). I don’t think it’s reasonable to say ”you can’t have a simple term” — people will create a term if they need one. But let’s make sure that term is clear and not misleading. Regardless of motive, the term “intellectual property” is simply too misleading for this purpose. Some people want to mislead others, but we don’t need to coddle them. There are already terms for this set of laws that covers intellectual works and doesn’t mislead: “data rights” or “intellectual rights”. Please use them!



After I wrote this article, I learned of an interesting related article: Cory Doctorow’s “‘Intellectual property’ is a silly euphemism”, The Guardian (21 February 2008). He notes that “intellectual property” is an “ideologically loaded term” that is “a dangerous euphemism that leads us to all sorts of faulty reasoning about knowledge”. He notes that “Fundamentally, the stuff we call ‘intellectual property’ is just knowledge” and that it is dissimilar from property in important ways. He concludes, “If we’re going to achieve a lasting peace in the knowledge wars, it’s time to set property aside, time to start recognising that knowledge - valuable, precious, expensive knowledge - isn’t owned. Can’t be owned. The state should regulate our relative interests in the ephemeral realm of thought, but that regulation must be about knowledge, not a clumsy remake of the property system.”

I think copyright can be useful, but the essay Copyright Is Not Property (2012-04-20) (part of The Case for Copyright Reform by Christian Engstrom, MEP, and Rick Falkvinge) makes two points: Copyright is not property (copyright is a limitation of property rights), and the original purpose of copyright was to enable censorship, not to enable progress. It explains that Bloody Mary "shared the concern of the Catholic Church over the printing press. The public’s ability to quickly distribute information en masse was dangerous for her ambitions to restore Catholicism, in particular their ability to distribute heretic material... She devised a monopoly where the London printing guild would get a complete monopoly on all printing in England, in exchange for her censors determining what was fit to print beforehand. It was a very lucrative monopoly for the guild, who would be working hard to maintain the monopoly and the favor of the Queen’s censors. This merger of corporate and governmental powers turned out to be effective in suppressing free speech and political-religious dissent. The monopoly ... was called copyright. It was widely successful as a censorship instrument... Her successor, Elizabeth I, was just as happy to keep the monopoly after Mary’s death in 1558 to prevent people from discussing or disseminating Catholic material... What we see at this point in history is copyright in its unspun form: a monopoly with heritage from censorship where artists and authors were not even considered, but where it was always for the publishers’ profit." I am not against copyright, but copyright needs to be very limited, because copyright can be used to censor information. Indeed, the original purpose of copyright was censorship, so we should be wary of powerful long-term copyright laws and extensions of copyright regimes.

I have no illusion that everyone will change their terminology just because I say they should. And I am happy to talk with people who happen to use the term. But even if they won't change their terminology, if people are repeatedly reminded that the terminology is misleading, they are less likely to be misled.

Feel free to see my home page at http://www.dwheeler.com. You may also want to look at my paper Why OSS/FS? Look at the Numbers! and my book on how to develop secure programs.

(C) Copyright 2011-2012 David A. Wheeler. Released under the Creative Commons Attribution-Sharealike (CC BY-SA) license.