Property vs. Intellectual Property

The illegal copying of copyrighted materials is again and again referred to as "theft", and some people believe that illegal downloading of a piece of music is the same as shoplifting a CD from the supermarket.

Intellectual property does share important characteristics with real and tangible property. For instance; there is a right to exclude, which is enforceable by injunction. But an important difference between them, is that real and tangible property are rivalrous goods, where intellectual property is non-rivalrous. If you use my laptop, I can’t use my laptop. If you download a copy of a piece of music from the Internet, I can still download a copy of the same piece of music. Real property also presents the problem of "the tragedy of the commons", meaning the property gets "overconsumed", and I can’t use my property for it's purpose anymore. Intellectual property can’t get overconsumed. You can download millions and millions of copies of an piece of music, and the music still remains the same.

Mark A. Lemley, professor at Stanford Law school, has written a paper called Property, Intellectual Property and Free Riding. In it, he talks about the problem with intellectual property being compared to and treated as real or tangible property.

He asks on p. 4, if the term "intellectual property" may itself be part of the problem.

The word "property" is misleading, and in a way suggests that intellectual property should be treated the same way as other types of property (real and tangible).

I don’t believe that the term is (any significant) part of the problem. And the reason is that we have the same problem in Denmark even though we call it something else.

I am a visiting student from Denmark, and I went three years to law school in Copenhagen, Denmark. In Danish we don’t use the term "intellectual property" about copyright, patents and trademarks. Instead, we call it "immaterielle rettigheder", or translated into English: "immaterial rights". Rights to something that isn’t a physical object. This term doesn’t suggest in the same way that intellectual property should be treated as other types of property.

The Danish record- and movie industry started "The Anti-piracy Group", that is supposed to help prevent illegal copying of music and movies. The group has it’s own website (unfortunately, it’s only in Danish), where they give readers information about Danish copyright law. This is a quote from their website, which I have translated into English:

"Piracy is theft: You take something without asking, without getting permission and without paying for it."

The Danish record industry is not the only one who uses the term "theft" lightly, here is a link to a newspaper article that also uses the term "stealing" about illegal copying. The article is written in Danish.

Danish courts don’t use the term "theft" lightly, but neither do the American courts.

It seems as though the idea of intellectual property as a form of property you can steal, isn’t so much related to the term itself, but rather to a general misunderstanding of the basic legal concept of "theft": For someone to have stolen something from you, you have to actually - not have it anymore.

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-James