Intellectual Property versus Intellectual Property Rights

I’m writing “The Problem with Intellectual Property,” to appear in Handbook of the Philosophical Foundations of Business Ethics, 2nd ed., Christoph Lütge & Marianne Thejls Ziegler, eds. (Springer, forthcoming 2025; Robert McGee, section ed.). (My “The Case Against Intellectual Property,” a different article, appeared in the first edition, Handbook of the Philosophical Foundations of Business Ethics (Prof. Dr. Christoph Lütge, ed.; Springer, 2013) (chapter 68, in Part 18, “Property Rights: Material and Intellectual,” Robert McGee, section ed.).)

One of my footnotes is becoming unwieldy and I will have to pare it down, so I include the full version here, as I have trouble killing my darlings.

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[Main text; other footnotes omitted]

It is widely recognized that the institutional protection of private property rights was a necessary (though probably not sufficient) condition for the radical prosperity experienced in the West since the advent of the industrial revolution. These property, or ownership, rights include rights in material, scarce resources, but also so-called “intellectual property” (IP) rights, the most significant of which—patent and copyright—emerged in their modern form around the same time as the industrial revolution. These so-called IP rights include, most significantly, patent and copyright, but also trademark, trade secret, and other rights related to creations or products of the intellect. The idea that IP rights are a legitimate type of property right, and a necessary part of a free market economy, has been taken for granted since the dawn of modern patent and copyright approximately two centuries ago.

Despite the widespread assumption that IP rights⁴ are legitimate and necessary, even its defenders seem somewhat uneasy with it. They treat it differently than other property rights. Thus most proponents of IP favor limited terms for patent and copyright—about 17 years for the former and usually over 100 years for the latter—unlike the potentially perpetual ownership of traditional forms of property.

⁴ Technically speaking, “intellectual property” or IP refers to the interests protected by various IP rights or laws—to the object of the legal right—and is distinct from the IP rights granted by IP laws. For example, a patent is an IP right (granted by patent law) that gives the owner of the patent protection over his invention (his “IP”); a copyright gives the owner the legal right to his creative work (his IP). However, the term “IP” is often used somewhat informally to refer both to the IP right (patent or copyright) and to the thing protected by the IP right (invention, creative work).

Thus, someone’s patent rights in his invention may be referred to as his IP instead of his IP right in his invention. To avoid tedium I will also sometimes use the term IP to refer to IP rights, unless the context indicates otherwise. Thus, when I say IP should be abolished I do not mean inventions or artworks (the objects of patent rights and copyright rights) should be abolished, but rather that IP law, and the IP rights granted thereby, should be abolished. It is tedious to have to point this out, especially since the need to clarify this arises because of sloppy and even dishonest equivocation between the things protected by IP rights and the rights themselves. It is common for the IP proponent to accuse the IP abolitionist of being against innovation, against inventions (the “IP”), and so on just because he opposes IP rights. As this article makes clear I do not oppose innovation and creative works; to the contrary one reason to oppose IP rights is that they reduce, impede, distort, and hamper the creation of such works. Opposing state roads and government education does not mean one opposes roads and education; opposing state subsidies for the arts or science does not mean one opposes the arts and science; opposing state subsidy of innovation and creative works in the form of patent and copyright grants does not imply opposition to innovation and creation.

I have pointed out something similar regarding imprecise use of the term property in political philosophy, where the word “property” is commonly used to refer to the thing that is the object of a property (or ownership) right. Thus, someone’s car or house is referred to as his “property.” However, as one leading scholar explains:

Property is a word with high emotional overtones and so many meanings that it has defied attempts at accurate all-inclusive definition. The English word property derives from the Latin proprietas, a noun form of proprius, which means one’s own. In the United States, the word property is frequently used to denote indiscriminately either the objects of rights … or the rights that persons have with respect to things. Thus, lands, automobiles, and jewels are said to be property; and rights, such as ownership, servitudes, and leases, are likewise said to be property. This latent confusion between rights and their objects has its roots in texts of Roman law and is also encountered in other legal systems of the western world. Accurate analysis should reserve the use of the word property for the designation of rights that persons have with respect to things.

A. N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001), § 1 (citations omitted; last two emphases added).

For other concerns about imprecision in the use of metaphors and definitions, see Kinsella, “On the Danger of Metaphors in Scientific Discourse,” StephanKinsella.com (June 12, 2011); Kinsella, “What Libertarianism Is,” in Legal Foundations of a Free Society [LFFS], App. I. On the distinction between possession and ownership, for example, see Kinsella, “What Libertarianism Is,” notes 28–29 and accompanying text; idem, “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” in LFFS, at notes 34–35 and accompanying text; and idem, “Law and Intellectual Property in a Stateless Society,” in LFFS, n.36.

This terminological confusion and awkwardness is not the fault of us critics of IP. To the contrary, a primary reason for this terminological confusion is that advocates of IP rights chose to group various state-granted monopoly privilege rights together and call them “intellectual property,” primarily to defend patent law from criticisms mounted by free market economists and other opponents of monopoly in the nineteenth century. See Kinsella, “Intellectual Properganda,” Mises Economics Blog (Dec. 6, 2010); Fritz Machlup, “The Patent Controversy in the Nineteenth Century,” in Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023). Some opponents of IP do not like to use the term “intellectual property” because they do not want to concede its status as a legitimate or genuine “property right” and prefer to refer to it as a monopoly privilege or other terms. See, e.g., the title of one well-known critique of IP, Michele Boldrin and David K Levine, Against Intellectual Monopoly (Cambridge University Press, 2008; www.againstmonopoly.org); Kinsella, “Intellectual Poverty,” C4SIF Blog (Jan. 6, 2011). However, in my view, the concept of IP is so entrenched that it would be impossible to oppose it without using this label. I have chosen to accurately identify the various IP rights and laws and explain why these laws are unjust rather than waste time in a futile debate about semantics. Thus my first major paper is entitled “Against Intellectual Property,” which is explicitly opposed to IP so that I am not conceding the legitimacy of IP by using the loaded term IP that the IP propagandists have succeeded in introducing to discourse about this topic. (In this, the IP propagandists are similar to the leftists who unfortunately succeeded in changing the meaning of the term “liberal” in the US to mean light socialism or progressivism so that now the term “classical liberalism” has to be used to avoid confusion, although “liberal” in Europe largely still means what is now referred to as classical liberalism in the US. I recall Objectivist David Kelley once in a speech said, if the leftists are done with the term liberal, can they please give it back?)

One mistake made by many opponents of IP is that they believe the problem with IP is that it is “not property,” which is one reason they are reluctant to adopt the loaded term “intellectual property.” But this is because they still hew to the common view that things we have property rights in “are property.” If they believe that IP law is illegitimate, this means that “intellectual property” is not actually “property”; that there is no such thing as “intellectual property”; or as some of them say, “intellectual property does not exist.” As this chapter will make clear, the problem with IP is not that it does not exist, but that IP rights and IP law are unjust. Inventions and creative works exist; patents and copyrights, and patent and copyright law, exist. The opponents of IP here remind me a bit of the natural law types who resist calling a bad law “law” but instead say things like, an unjust law is no law at all.

While there not necessarily a moral obligation to respect an existing positive law (but see Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton, 2004), ch. 2, text at n.48; idem, “Foreword: The Ninth Amendment and Constitutional Legitimacy,” Chicago-Kent L. Rev. 64, no. 1 (1988): 37-66; idem, “Constitutional Legitimacy,” Colum. L. Rev. 103 (2003): 111–48), it is silly to say it is “not a law.” That’s what got Irwin Schiff in federal prison. So  I have always disagreed with the way the natural law side frames the debate with legal positivism. See Stephan Kinsella, “Logical and Legal Positivism,” StephanKinsella.com (June 23, 2010). It is as if are afraid to classify an unjust positive law as a “law” because to call it law gives it some power, as if some incantation has been made. I believe this is because the natural law side suffers from the same mistake as the legal positivists: ultimately, they all believe that true law can only come from a sovereign “decreer” of law, an authority. The legal positivists reject any natural law source as objective, and thus retreat to the state and its legislature as the only agency authorized to declare what law is. For them, there are no “higher law” principles from which existing positive law can be meaningfully criticized. Natural law advocates reject this view, believing in a higher source of law—but a source of law nonetheless, whether the source be God or nature. But God himself is not bound by any higher standard so his decrees as to what is moral or not might as well be arbitrary. Hume’s is-ought mean’s that God’s decrees, or the nature of things, does not translate into norms, into right or wrong. See Kinsella, “Dialogical Arguments for Libertarian Rights,” in LFFS, text at n.12; Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (Auburn, Ala.: Mises Institute, 2010 [1989]), p. 163 (citing W.D. Hudson, ed., The Is-Ought Question (London: Macmillan, 1969)).

I believe both views are mistaken, or at least confused, and take the view of Hoppe who argues for a different conception of natural rights—natural rights “rightly conceived.” See Kinsella, “Dialogical Arguments for Libertarian Rights,” in LFFS, text at n.14. In my view there is nothing wrong with recognizing positive law as being in force in a given legal system and criticizing it as just, or unjust, based on natural rights “rightly conceived”—that is, the libertarian rights I argue for in LFFS. Admitting that a given law or legal right exists does not give it puissance; I do not believe in spells and incantations. And refusing to call patent and copyright “intellectual property” will not stop IP law from being enforced. Using the IP propagandists’ term “IP” does not grant that IP law is just; speaking of “intellectual property” does not mean IP rights are just; and the problem with IP is not that IP “does not exist,” but that IP law, and the IP rights it grants, is unjust.