[Zigurd]

The point is that intellectual property is property in the same way that quarks have "color." It is a relatively novel legal concept compared to physical property. In the US constitution it is completely distinct from other rights: You are assumed to just have rights. Not among the assumed rights are patents and copyright, which are a government granted monopoly.

[humanrebar]

I agree with you about patent and copyrights, but I think it's important that people view essential rights like property rights and freedom of speech as being truly inalienable -- that individuals have them as long as right and wrong exist.

[dublinben]

>property rights and freedom of speech as being truly inalienable

That's a simply preposterous belief though, and we should treat it as such. Many people have their rights to property and speech infringed on a regular basis. There isn't even a consensus on what those rights entail, as is clear any time 'hate speech' is brought up.

[Zigurd]

"Inalienable" is quite an idealistic and American word in this context. Nevertheless, the US federal constitution is written with some assumptions, and a "sense," That is, it is addressed to the government, from the people and the states, which predate the existence federal government, and which can undo the federal government through a constitutional convention. The ninth and tenth Amendments spell out the assumption that rights are not granted by the government, but powers are delegated to the federal government. Rights are open-ended. Powers are enumerated. This is an elegant way of making the constitution future-proof (so beware of people who start a sentence with "The Framers never had...").

Copyright and patents are a notable exception to the above. They are an explicitly granted monopoly, through an explicitly enumerated power of the federal government. The "property" part appears nowhere in the constitution and is a tendentious word added later, like "pro-life."

[SEMW]

> The "property" part appears ... is a tendentious word added later, like "pro-life."

Don't be silly. The word "property" in "intellectual property" is used in its legal sense: a particular and well-defined set of characteristics that a bundle of rights can have (such as being transferable to other entities, and binding the world).

The definition comes from common law, and certainly predates your country's constitution.[1] By the legal definition, modern implementations of patents, copyright, and trademarks are very definitely property rights (in the UK and USA anyway).[2]

Whether they should be is a different question, but at the moment, they are. E.g. in my country, the relevant Act begins with "Copyright is a property right" - that isn't trying push a point of view, it's defining it as a property right. To use a programming analogy, it's telling you that Copyright inherits from the class IntangibleProperty (which itself inherits from Property), which gives it a bunch of preexisting attributes and methods.

[1] Which isn't to say that copyright etc. was a property right back in 17whatever - especially as, back then, choses in action were generally untransferable - only that "property right" was defined back then.

[2] Well, mostly: in some countries (IIRC not the US), writing a work that qualifies for copyright also gives you a few non-proprietary rights, called 'moral rights'. If you're being picky you could argue these aren't technically "IP" rights, but they're usually included under the IP banner for convenience.

(IANAL)

[humanrebar]

"Whether they should be is a different question"

That's the exactly question we're discussing. The legal term "intellectual property rights" steal gravitas from more important (physical) "property rights", which are natural rights and are essential in a free society.

Your point is that "intellectual property" is a legal term. No one disagrees. The point of the people railing against the phrase "intellectual property" is that the phrase is misleading and that it should be replaced with something more apt. Perhaps you are missing that point?

[SEMW]

> The point of the people railing against the phrase "intellectual property" is that the phrase is misleading

I venture you may have missed my point. The phrase isn't misleading, it's correct.

Having the word "property" in its name isn't what makes it a property right. It's a property right because it behaves as a property right (ownable, transferable, binds the world). "Replacing [the word 'property' in IP] with something more apt" is like insisting that you can't call mallards 'ducks' - they're still going to walk like a duck and quack like a duck.

When I said "Whether they should be is a different question", I meant 'should the right have this set of legal characteristics', not 'given that it has this set of characteristics, should it be called "property"'.

Whether the use of the word "steals gravitas" from physical property rights is neither here nor there. Law isn't poetry, it's programming. Renaming a class doesn't change what methods it has.

[Zigurd]

Is a government granted monopoly "property?" Is cancelling such a monopoly a "taking?"

[SEMW]

> Is a government granted monopoly "property?"

Is a car red? Some cars are red, some aren't. Some red things are cars, some aren't.

Government-granted monopolies can create property rights, sure. Other property rights (even intangible property rights) exist that are neither government-granted nor monopolies - obvious example, a debt. And a government can grant a monopoly without creating a property right, e.g. by choosing to award all its rail contracts to a single company.

[humanrebar]

The work "inalienable" implies that it's outside the moral authority of culture, society, and government to remove those rights. It doesn't imply that those rights can never be infringed. That is, violating those rights is immoral, not impossible.

In fact, the consensus that rights are infringed proves they exist. This is a correct example of the often misused phrase, "the exception that proves the rule".

But you are right that the specifics of weighing rights against each other are tricky. That's where cultures, governments, and legal systems come in. To be clear, those human organizations do not create inalienable rights, but they are responsible for enforcing them. And a failure to do so would be a moral failure, not an impossibility.