The debate over how best to understand the odd notion of intellectual “property” is long-standing. Many find that an analogy between the products of intellect and creativity on the one hand, and property on the other, deeply inappropriate. There is no doubt that such an analogy is often badly abused. When the recording industry insists that music file-sharing be referred to as “theft,” for example, they ignore a fundamental difference between the physical and the intellectual realms. When physical property, a car, for instance, is stolen, the owner is entirely deprived of the enjoyment of that property. When music files are swapped, on the other hand, the owner may suffer a loss of value in her property, but she is not subject to the same total deprivation.
These issues are explored in a new book and an accompanying blog by Chapman Law School professor Tom Bell called “Intellectual Privilege.” Bell’s basic point is to suggest a better way to look at the legal protection of the products of human intellect; one that neither equates them entirely with physical property nor dismisses all such protection as a burden on the ideal of free use:
“I here offer a third view of copyright. I largely agree with my
friends on the left that copyright represents not so much a
form of property as it does a policy device designed to “promote
the Progress of Science and useful Arts” (as the Constitution
puts it). I thus call copyright a form of intellectual privilege.”
Bell’s project promises to generate some fascinating discussion about the nature and uses of intellectual production, and it models an emerging form of scholarship by making the text available pre-publication for public comment. For even more discussion, see the Lessig Blog, where an announcement of Bell’s book has also generated interesting comment.
I look forward to following this debate, but at the outset I want to note that the analogy between IP and physical property is not all bad and is sometimes quite useful. The basis of James Boyle’s now classic article on “The Second Enclosure Movement and the Construction of the Public Domain” is, after all, just such an analogy. And I recently used the analogy with physical property, appropriately, I hope, if less brilliantly, to refute some of the parade of horribles that some have suggested will follow from a mandate to make the products of NIH funded research available in open access.
Bell emphasizes that IP is a bundle of privileges granted by the government to enact certain policy goals. But this definition is equally applicable to physical property; property ownership is a government granted right to exclusively enjoy (that is, to exclude others from) a particular object or piece of land. As with IP, the exclusive rights of physical property ownership are subject to numerous restrictions and exceptions (taxes, zoning, etc.) that help serve public policy ends. The real object of the discussion should be to arrive at a careful understanding of both physical property and intellectual privilege and then look at how they relate, where they differ and what policy alternatives might result from the differing views. Tom Bell has offered us a wonderful opportunity to participate in that project.