What Do We Talk About When We Talk About Intellectual Property (IP)?

In 1981, Raymond Carver published a collection of stories entitled, What We Talk About When We Talk About Love. (Ludwig Wittgenstein also addressed a related question, but Carver’s book is generally considered a more enjoyable read.) I’ve been thinking about some questions phrased in a similar way, but on a topic of much less personal or intellectual portent: What does the term ‘intellectual property’ mean? And also, digging a little deeper: ?How can we use the term without speaking vaguely or inaccurately?

One way to address the question is through definition: According to WIPO, IP —the conventional initialism used as shorthand for “intellectual property—“refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.” This is helpful— “creations of the mind” does not refer simply to our thoughts or any airy notions that float by. It refers to the instantiated works (‘creations’) that result from those thoughts. This is why “He stole my idea!” is almost always a non-starter when it comes to allegations of infringement (unless you’ve done far more than just thought about the idea). Rather, when those ideas are cast into a form cognizable by laws written to protect enumerated rights pertaining to them and their use (patents, copyrights, and trademarks are the three referred to in WIPO’s definition, but there are other forms of IP as well), those creations of the mind can be understood as IP.

N.B. It’s not just about commerce. It is also about attribution and cultural provenance. Some works are best thought of as stemming not from a specific, identified person, but from a culture or society, as WIPO has recently articulated. A sort of a right not-to-be-exploited.

That’s the intellectual part. But what about the property part?

Property is an ancient concept involving ownership and authority to control. “Ownership is the legal right to use, possess, and give away a thing.” Some radical thinkers might insert, “…or to destroy it.” Property, by itself, is most commonly used to refer to land (real estate) or smaller tangible items (chattel, such as a prized collectible or a vehicle). Definitionally, then, we get to: The term Intellectual Property refers to those categories of properties —recognized by laws —through which ownership and control may be exercised over the creations of the mind. The main forms are patent, copyright, and trademark. Some other forms include Trade Secrets, Rights of Publicity, and Geographic Indicators (of origin).

A bit of a side-quest: I thought it might be fun to play with some new tools that might enable us to quickly dig a little deeper into the category. The tools I chose for this purpose were chatGPT, Bing chat, and Bard. (Given the hype cycle in recent months, it is likely that you have heard of them, so I won’t go into further ado about them.

First, I asked Bard --

“What is intellectual property, and how is it different from real estate?”

It answered:

“Intellectual property (IP) is a category of property that includes intangible creations of the mind, such as inventions, literary and artistic works, symbols, names, images, and designs. IP rights protect your right to use your original creation but does not protect the idea itself.

"Real estate is land and the buildings on it. It is a physical asset that can be bought, sold, and rented.

"The main difference between intellectual property and real estate is that intellectual property is intangible, while real estate is tangible. This means that intellectual property cannot be touched or seen, while real estate can.”

That’s not bad as far as it goes. One nice thing about these tools is that they provide responses in grammatical English. That paragraph could stand to say a little more about patents, I suppose, which really can in effect protect (patentable) ideas. But the tangibility aspect seems spot-on to me.

I refined my query (I have learned that the activity is now called “AI prompt design engineering” and there are jobs posted for it .?.?. for now. “I, for one, welcome… “ ) and sent it to ChatGPT, which responded similarly, but with more details about the different forms of IP:

Intellectual property (IP) refers to intangible creations of the human intellect that are protected by law, such as patents, copyrights, trademarks, and trade secrets. These creations may include inventions, literary and artistic works, symbols, names, images, and designs used in commerce.

"On the other hand, chattel property refers to movable personal property, such as furniture, clothing, vehicles, and livestock. These are physical items that can be seen, touched, and moved.

"Real estate, also known as immovable property, refers to land and any permanent structures attached to it, such as buildings, homes, and other fixed assets.

"The main difference between intellectual property and chattel or real estate is that intellectual property is intangible and immaterial, while chattel and real estate are tangible and physical."

I then asked a follow-up question: In what way may it be misleading or confusing to refer to works of the mind as "intellectual property"?

Referring to works of the mind as "intellectual property" may be misleading or confusing because it can create the impression that they are similar to physical property, such as real estate or chattel. This can lead to misunderstandings about the nature of intellectual property and the rights that are associated with it.

?…. Some intellectual property rights are subject to limitations and exceptions, such as fair use or the doctrine of exhaustion.

Again, I thought that was pretty good! In the example of copyright, publishing a book or releasing recorded music entails letting it out into the world for comment and criticism and other types of fair uses. If you want complete control, hide the book’s manuscript under your bed and share no copies. ‘Complete control’ is an illusion, the philosophers tell me. With patents, in theory at least, the grant and publication of the patent may entail the availability of some fair, reasonable, and non-discriminatory (FRAND) form of licensing for the patented invention.

Bing chat’s response to my refined query was similar to that of the other two ‘bots, but emphasized the distinction in the duration of control a little more heavily:

The main difference between intellectual property and chattel property or real estate is that intellectual property is intangible and non-physical, while chattel property and real estate are tangible and physical. Another difference is that intellectual property rights usually have a limited duration, while chattel property and real estate rights can last [nearly] indefinitely.

I added the word “nearly” in order to be more precise. One more comparison to real estate: just as there are exceptions to the rules against trespass – e.g, you as a user may have an overriding authorization, such as from law enforcement or fish & wildlife regulations or from some sort of necessity, such as that you are walking by and see a child in danger of drowning – so too do the rules of IP incorporate “exceptions and limitations.” One limitation is the duration, or term of the protection. For patents, I mentioned FRAND above and there are others. For copyright, “there are several exceptions to the copyright owner’s exclusive rights scattered throughout the Copyright Act.” Similarly for trademarks.

Earlier in this post, I suggested we can and should clarify what we mean when we talk about IP. With Mr. Carver, I’m still never quite sure what we are talking about when we are talking about love; and with Mr. Wittgenstein, I harbor the suspicion that there is a lot of gamesmanship going on any time we use language to try and communicate… something, perhaps an ineffable something. IP is, like all of the notional world, a human-created group of rights and rules —synthetic, to be sure, but real nonetheless. Also, we saw that when the new generative AI’s talk about IP, they do appear to get the basics right. Mainly.

A final note: Please bear in mind that, for this blog post, I used only the parts of the ‘bots responses that made valid sense. I edited out all the other parts. (In meta-mode for a moment, I suspect that hardly anyone holds valid IP in responses stemming from interactions with generative AI chatbots (unless there is a binding license or other (agreement ) that states otherwise). Fortunately, these tools lack both a sense of irony and of ressentiment. ) We have every reason to see these tools as still in their infancy And should use them with appropriate caution --if we opt to use them at all.