Magazine article Information Today

Why Copyright Isn't Property

Magazine article Information Today

Why Copyright Isn't Property

Article excerpt

Copyright is commonly referred to as one of the broader forms of legal regimes called "intellectual property." By itself, this is not a novel or particularly controversial claim.

The more contentious claim considers copyright as a form of tangible property. The "copyright is property" trope is significant because it lies at the root of entertainment-industry arguments about "theft" and "piracy" of creative works. My current research into this issue suggests that these arguments have manifested themselves in legislation such as the Digital Millennium Copyright Act (DMCA, which passed its 10th anniversary in October 2008) and the recently enacted PRO IP Act, which will increase civil and criminal penalties of copyright infringement and will create an executive position inside a presidential cabinet, effective with President-elect Barack Obama's administration. So here's an introduction into the theoretical but pragmatically important area of "propertizing" copyright.

The Origins of 'Intellectual Property'

According to the World Intellectual Property Organization (WIPO), intellectual property (IP) is a term that refers to "creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce." WIPO divides IP into two categories: industrial property (patents, trademarks, and industrial designs) and copyright (literary, artistic, creative, and aesthetic works). In the copyright education I have conducted as a faculty member and trainer, I teach that there are five forms of intellectual property: copyright, patent, trademark, trade secrets, and licensing.

Stanford University law professor Mark Lemley was one of the first scholars to note that WIPO was probably the first organization in the late 1960s to use the term "intellectual property" to describe "creations of the mind." Since that time, the term has gained widespread adoption: groups such as the American Patent Law Association and the ABA Section on Patent, Trademark, and Copyright Law have changed their names (to the American Intellectual Property Law Association and the ABA Section on Intellectual Property Law, respectively).

Despite my lengthy involvement with copyright, I never considered the possibility that IP had rhetorical significance until last summer when a fellow scholar chided me for using the term during a research presentation. This scholar opined that IP at best had become confusing to the point of being meaningless. At worst, he felt the term tacitly (and misguidedly) reinforced notions that "creations of the mind" had characteristics and elements similar to tangible property, and they should be protected as tangible property.

After some investigation, I discovered this scholar maintains a continuing association with the Free Software Foundation, a Boston-based nonprofit that "promote[s] computer user freedom and defend[s] the rights of all free software users." In 2004, the foundation's founder, Richard Stallman, wrote an article that questioned the prudence of using IP, claiming the term incorrectly promotes thinking about copyright, patent, and trademark by analogizing them to property rights in tangible goods.

Intellectual Property as Property

Scholars have long debated the extent to which copyright is (or should be) analogous to laws that protect tangible goods. The most recent round of theoretical debate concerning "copyright as property right" has its roots in a September 1995 federal government report titled "Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights," better known as the NII White Paper. According to Pamela Samuelson and Hal Varian, professors at the University of California-Berkeley's information school, the Clinton administration researched and presented the NII White Paper during a unique time in the nation's political, economic, and technological development. …

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