Intellectual property is an umbrella term used by publishers of non-free works to refer to copyrights, patents, trademarks, and trade secrets based on these vague similarities:
- they all arise from intellectual effort, and
- they are all forms of "property", or state-sponsored rights to exclude other people from doing certain things that are transferable and licensable either exclusively or nonexclusively.
Opponents of the practices of some of these publishers claim that this term invites confusion.
Why it confuses
Richard M. Stallman, founder of the project to develop the GNU operating system, has called the use of the term "intellectual property" by these publishers "a seductive mirage". As I understand it, his points are as follows:
- "Intellectual property" conflates the respective purposes of copyright, patent, trademark, and trade secret law. Copyrights and patents exist to promote investment in works and inventions, unlike trademarks whose purpose is closer to consumer protection.
- "Intellectual property" also conflates their respective scope and limitations. For example, only copyright and trade secret care about provenance, requiring access to the original work as an element of infringement; patents and trademarks can be infringed through independent reinvention. Unlike a patent, a copyright has fair use and a wide variety of unregulated uses, and the longer term is thought to compensate for this and for the provenance requirement. But a proponent of the the term might resort to strained analogies, such as comparing prior art in patents to scènes à faire in copyrights or comparing a laches defense to copyright or patent infringement to a genericide defense to trademark infringement.
- "Intellectual property" further conflates the respective purposes and scope of these legal traditions with those of laws governing the use of real estate or immovable property. The same analogizing applies; for example, fair use and other limitations of copyright correspond roughly to easements.
- Abbreviation as "IP" implies an expectation that the general public has accepted these conflations to the point that the reader should take them for granted.
One trend in video game journalism as of 2010 is to refer to a video game's setting, along with elements associated with the setting such as characters and events, as the game's "IP". But this overemphasizes the fact that it is property, or something to which exclusive rights are attached, not commons, or something for all to use in moderation. Furthermore, the abbreviation implies that people should take for granted that the best way to treat a setting is as property, not as commons. Conflating a setting with the copyrights attached to that setting causes problems for cases where the copyrights aren't in the familiar pattern of exclusive control by an established company. For example, if someone were to make a film or video game adaptation of The Adventures of Pinocchio, an episodic novel by Carlo Collodi that has entered the public domain due to age, would this be an "original IP" because no license was involved, "3rd party IP" because it was created by someone else, or not an "IP" at all because it is held in common? Likewise, the setting of a comic strip published under the Creative Commons Attribution or Attribution-ShareAlike license is held in common; what kind of "IP" is it?
How to write more clearly
If by "intellectual property" you mean copyright, say "copyright" instead of "intellectual property" and "copr." instead of "IP". If by "intellectual property" you mean the milieu of a novel, graphic novel, film, or video game, say "setting". If by "intellectual property" you mean a bundle of disparate rights that are licensed as a unit, consider how they differ before writing.
- Richard M. Stallman. "Did You Say 'Intellectual Property'? It's a Seductive Mirage". The GNU Project, 2004. Updated 2010-09-05.