“According to Professor Mark Lemley, now of the Stanford Law School, the widespread use of the term “intellectual property” is a fad that followed the 1967 founding of the World “Intellectual Property” Organization, and only became really common in recent years.”

I have just been reading Copyright, Commodification, and Culture where Julie Cohen says:

“As Tyler Ochoa and Edward Lee have described, nineteenth-century American courts used the terms ‘public property,’ ‘common property,’ and publici juris, which translates loosely as ‘of public right,’ to refer to both noncopyrightable and nonpatentable subject matter.”

and she supports this with numerous citations. If all public domain material was thought of as public ‘property’ in the 1800’s this makes me believe that non-public intellectual material was also thought of as ‘property’. So the generic term, Intellectual Property, is not so new and this probably explains why it is so well embedded in our thinking.

This is not to say that it is a good term 🙂

However, when it comes to copyright, I believe Stallman is also at risk of falling into the property trap when he says, ‘Some speak of “exclusive rights regimes”, but referring to restrictions as “rights” is doublethink too.’ Rights to a limited resource (like physical property) does restrict someone else’s access but rights to a resource without limits (intellectual content) need not restrict access by others. The idea of applying rights to intellectual content should not be dismissed in the same way that the ‘property’ equivalence is dismissed.

You can own ‘a right’ to something even if you don’t own the whole thing. Stallman owns the right to say he was the author of ‘Did You Say “Intellectual Property”? It’s a Seductive Mirage’ ( Copyright © 2004, 2006 Richard M. Stallman) while at the same time everyone else can own the right to a copy of the essay (Verbatim copying and distribution of this entire article is permitted worldwide without royalty in any medium provided this notice is preserved).

I
have argued that, rather than being dismissed, a real emphasis on rights, rights for consumers and producers, could provide a productive route forward especially as the copy-right regime is already well established.

By Will Waugh We can’t control it, we must try to direct. I have had the privilege of spending the last two days with advertising lawyers and business affairs types at our Advertising Law and Business Affairs Conference. The above…