Wednesday, April 29, 2015

A critique of "Intellectual property"

In my April 19, 2015 blog post "Thoughts on Copyright", I  argued against extending copyright beyond 50 years after an author's death. My basic premise was that such an act was socially unjust and amounted to restricting the right to distribute information to a few creating an unfair and unnecessary monopoly over the distribution of creative expression. In response to that post, a colleague of mine responded especially to one of my points that copyright should be treated like patents. His argument was that the "economic worth of both a patent and copyright are realized differently". However, one of his response that triggered this blog post was the mention of the school of thought that conceptualizes "intellectual property" as "real property". Hence, the purpose of this post is to react to the school of thought that argues that we should treat "intellectual property" as "real property".

Let us begin by first defining intellectual property. For this, I go to the World Intellectual Property Organization's [WIPO] website. According to WIPO (n.d.), "Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce" (p. 2). In my personal opinion, it is problematic to conceptualize  "creations of the mind" or what I call creative expressions of the mind as "property". For the rest of this post, I want to advance two arguments against conceptualizing works or expressions of the mind as "intellectual property" or even as"property". By my use of the term "property", I mean equating works of the mind as land.

Argument 1: Equating works of the mind raises social justice issues
Treating creative works or expressions of the mind as "property" is an unjust idea that creates a class of haves and a class of have-nots that can be traced to the practice of feudalism. In feudalism, there were those who owned land and others that did not own land. As such, those who needed the land to create or use had to sell their labour, services or part of what they created to land owners or landlords.

Treating creative works of the mind brings back this type of system, where individuals labour to create works and have to own or use those that own the material means for making those expressions of the mind tangible or material. This type of system to me does not reflect a just model upon which to base the market for the exchange of products or expressions from the mind. It favours those that own the means for creating and distributing media. In this case, the owners of publishing houses, recording studios or technological platforms function as the landlords that are able to cash in on the works of authors, even after they are dead.

Second, treating the creative expression of minds in media creates new inequalities rather than enable a progressive open society that builds on the ideas of others and advance the welfare of all human beings. Just as how feudalism later gave rise to monarchy, where power and authority concentrated in the hands of a few, having creative expression of minds being treated as "property" will inevitably lead to the centralization of distribution of creative works in the hands of a few. What is to stop big companies from buying out smaller ones or pricing them out of the market?

Argument 2: Is "Intellectual property" really an appropriate term to refer to creative expressions or the labour of the mind?

For this section of my critique, I wish to raise a series of questions.

1) Are creative expressions of another person's mind worlds that we inhabit? Do we need to pay rent to inhabit or access such a "world"?


2) Are creative expressions products of the mind that can do things to or for other people who find value in those products?

3) For me the issue with "intellectual property" is that it is an inappropriate metaphor for what creative works of the minds are. Why do we select the metaphor of "property" for creative works of the mind and not another? And why does a global organization like WIPO want to enforce what is merely a rhetorical construction in order to create an economy out of it?

Another question that challenges this metaphor or property is:

4) Do we truly own our creative expressions even when what we "create" actually comes from recreating what we have learned from others?

We create from what we have seen, experienced, heard or read. And even when we have something "original", we use language rules and other rules of discourse taught or given to us by society to translate that which we conceive into a mode of expression and onto a medium. As Davies and Harré, (1999) argue, we use language according to rules that “are explicit formulations of the normative order which is immanent in concrete human productions, such as actual conversations between particular people on particular occasions” (p. 33). In addition, whatever we create using language is based on “whatever concretely has happened before, and to human memories of it, which form[s] both the personal and the cultural resources for speakers to draw upon in constructing the present moment” (Davies & Harré, 1999).

5) On that basis, isn't what we create using language and media as expressions of our mind really "private property" or something that should belong to the public?

My Conclusion:
We need to be critical of the idea of "intellectual property" and resist it. For this label of "intellectual property is socially and rhetorically constructed to liken creative expression to "property" or "land" or to something that can be owned.

For me, a more appropriate metaphor is "intellectual labour" which recognizes that a person has done "work" or expended effort to use the rules of language and discourse to construct or translate an expression of the mind into a product that others can consume or make use of. As such, we should recognize and reward creators for labour and efforts involved in making the expression of the mind consumable and accessible to the public. However, such rewards should not extend into unjust political and economic privileges.


Davies, B., & Harré, R. (1999). Positioning and personhood. In R. Harré & L. van Lagenhove (Eds.), Positioning theory: Moral contexts of intentional action (pp. 32–52). Malden, Massacghusetts: Blackwell Publishers.

World Intellectual Property Organization [WIPO]. What is intellectual property. Retrieved from

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