The Difficulty of Defining Intellectual Property

The Difficulty of Defining 'Intellectual Property'

The law needs to clearly define the scope and nature of what it regulates.
Statutes typically start with a glossary of definitions.
Legal analysis usually starts with a statement of its objects.
However, this is not easy when it comes to 'intellectual property'.
'Intellectual property' lacks a straightforward meaning.
It does not have a simple or generally agreed upon definition.
It is an essentially contested concept with a variety of definitions.
It consistently defies attempts to provide accessible insights into its meaning.
The question of what 'intellectual property' really means is often avoided.
The term is used as a vague reference to an ill-defined idea.
This chapter considers various conceptions of 'intellectual property'.
It surveys common methods used to define or explain the term.
These methods include:
- Definition by enumeration
- Stipulation
- Allusion to 'property'
- Intuition
None of these approaches provides an adequate explanation of the meaning of 'intellectual property'.
Each provides a definition with a practical or symbolic purpose in some circumstances.
None distinguishes the body of rules from the object of regulation.
None addresses the disjuncture between intellectual property regulation and the ideational object that inspires it.
As a consequence, none satisfactorily describes what is meant by 'intellectual property'.
The discussion points to flaws in these approaches.
It raises questions about whether 'intellectual property' has a fixed and settled meaning.

The Importance of Defining 'Intellectual Property'

The difficulties in defining ‘intellectual property' are well recognized.
The term does not describe an easily identifiable object, emotion, belief, or behavior.
There is no single checklist to identify whether something is 'intellectual property'.
'Intellectual property' is an umbrella term for a diverse collection of rules.
It regulates human behavior with respect to various objects.
These are generally grouped in doctrines like copyright, trademark, and patent law.
However, reference to these doctrines sheds little light on the meaning of the term per se.
Whether something is regarded as 'intellectual property' depends on whether it falls within one of the doctrines.
Whether a doctrine is considered intellectual property is a matter of customary consensus.
This consensus is reflected in or driven by statements of law.
Some doctrines are clear-cut examples of intellectual property:
- Copyright
- Trademark
- Patent
- Design law
Others are subject to debate:
- Misappropriation
- Competition or 'unfair competition' law
- Rights to control the use of persona ('publicity rights' in the United States)
- Law of confidential information and trade secrets
The distinguishing features or 'criteria' are not immediately obvious and are often vague.
Example from WIPO: 'Very broadly, intellectual property means the legal rights which result from intellectual activity in the industrial, scientific, literary, and artistic fields.'
However, some legal doctrines not traditionally viewed as intellectual property would fit this definition.
It could also exclude others that are generally deemed to be intellectual property.
Such a definition gives no insight into why certain activities are recognized as legal rights.
Listing the legal doctrines without explaining what gives them an intellectual property identity does not explain what is unique about intellectual property.
It does not explain what sets intellectual property apart from other areas of law.
Describing motivations for the creation of intellectual property laws and the application of intellectual property rights to particular objects ('intellectual propertization') provides insight, but does not explain what the term means.
It is extremely difficult to explain the nature of 'intellectual property' or offer a clear definition.
Slogan-like definitions are not likely to be adequate.
Several intellectual property scholars have proposed more theoretical definitions.
Peter Drahos: 'Intellectual property rights are rule-governed privileges that regulate the ownership and exploitation of abstract objects in many fields of human activity.'
Wendy Gordon: Intellectual property is a family of doctrines that controls patterns of valuable intangibles that are monopolized by another person.
The definitions proposed by Drahos and Gordon contain important insights.
Alone, theoretical definitions of this type do not provide a clear picture of what the term refers to.
Someone unfamiliar with the notion of intellectual property would no doubt be little wiser.
They do not negate the need for the question: What is 'intellectual property'?
With the term characterized by such uncertainty, it is tempting to disregard the expression as one that is used loosely.
The temptation is to concentrate instead on the way in which constituent doctrines operate.
This shifts the focus from the terminology of the law to its practice.
This raises the question of whether it really matters whether or not an area of the law is regarded as 'intellectual property'.
Would it not be more intellectually honest to disregard the imprecise term and instead direct attention to the legal significance of discrete doctrines?
This may be a pragmatic approach but, to do so is also to underestimate the rhetorical consequence of a term whose political importance is pervasive.
To do so is to step backwards to times when attention to the laws now commonly classified as 'intellectual property' was largely the doctrinal, black-letter approach of practitioners, and when little scholarly attention was paid to the field.
Such an approach examined the operation of intellectual property law within the legal system rather than as a part of societies that are influenced by politics, the economy, and culture.
As Rosemary Coombe has noted: There has been too little consideration of the cultural nature of the actual forms that intellectual property laws protect, the social and historical contexts in which cultural proprietorship is (or is not) assumed, or the manner in which these rights are (or are not) exercised and enforced to intervene in everyday struggles over meaning.
As a social institution that helps to order behavior within a society, law (including intellectual property law) must constantly define – and refine – its definitions of the people and objects it regulates.

The Symbolic Strength of 'Intellectual Property'

'Intellectual property' is a powerful term.
Appealing for rights to behave in certain ways on the basis of intellectual property claims can be an effective strategic tool for increasing one's wealth and ability to influence cultural development.
'Intellectual property' seems to have the ability to garner power.
This has propelled intellectual property center stage in many and varied contexts such as discussions about international trade, employment rights, academic freedom, biodiversity, and the protection of indigenous cultures.
Some commentators have identified a superficial symbolism in 'intellectual property'.
Because of its concurrent power and imprecision, they would like to see the term abandoned altogether.

A Case for Abandoning 'Intellectual Property'?

Richard Stallman, founder of the GNU Project to develop free operating system software for computers, is a prominent critic of the term.
Stallman argues that references to 'intellectual property' systematically distort and confuse discussions about law and policy in relation to doctrines such as copyright and patent.
He says that 'its use was and is promoted by those who gain from this confusion'.
He thus recommends expunging the term from language.
He observes that 'intellectual property' is a catchall phrase that is used to unite disparate laws under a single banner and so imply that intellectual property's various doctrines are each instances of a common principle and that each operates in the same way.
'Nothing,' he claims, 'could be further from the case.'
Stallman's recommended solution is to stop using the term 'intellectual property', to rename the World Intellectual Property Organization (WIPO), and to treat doctrines such as copyright, trademark, and patent law as separate areas of law that should be regarded independently of one another.
However, 'intellectual property' is well entrenched in the language of law, business, and international politics alike, and its demise does not seem imminent.
It is not merely a linguistic term but also a powerful concept.
Abandoning the term 'intellectual property', or changing its name, would arguably fail to redress its weaknesses.
It would also risk falling into the trap of effectively failing to see the wood for the trees if attention were to be focused on individual doctrines rather than on their cumulative effects.
Important insights can be obtained through analysis of both intellectual property generally and its constituent doctrines specifically.
So, for those interested in understanding this vaguely defined area of law, neglecting consideration of either level would be counterproductive.
To abandon the term 'intellectual property' would be to try to shift attitudes and perceptions by tinkering with language, much as Stallman argues self-interested proponents of intellectual propertization have done by adopting and entrenching the term in society's popular and legal psyches.
In theory, this may be an effective method of modifying socio-legal attitudes about the nature and strength of the law concerning copyright, patents, trademarks, and so on.
Similar tactics have been successfully applied to advance certain teleological ends in other contexts, such as when socially marginalized communities appropriate epithets commonly used against them.
When such terms are adopted as symbols of community pride and spirit, they can capture the power of a word, disempower the offense in it, desensitize those targeted with the epithet, and ultimately shift the popular meaning of the former insult.
However, while this may sometimes be a useful strategy for changing attitudes, it is questionable how effective it would be in practice for intentionally deleting or phasing out a deeply entrenched and practically useful legal concept from society's collective consciousness (especially when the term is very popular in some politically powerful quarters).
Despite its imprecision, the term has practical utility because it describes a concept or 'idea' of intellectual property that is relevant to discussions about many areas of legal, social, and economic policy.
As Debora J. Halbert observes:
- Perhaps the most disturbing thing about having to use the idea of intellectual property is that there is no viable alternative term in our modern world that can be used to describe creative and innovative work besides describing it as someone's property…. Ultimately, while I am very critical of the idea of intellectual property and would like to seek alternatives, I find myself using the term because alternatives are scarce and it is easy to use intellectual property to lump together very disparate things. However… even the words we choose need to be examined and perhaps rethought.
Halbert's recommendation that we examine and rethink a term that automatically implies 'property' in creative and innovative works is arguably wiser than the alternative proposal to abandon the term 'intellectual property' altogether.
Confronting the connotations and assumptions of the term head on is likely to be a far more powerful strategy for demonstrating its weaknesses and the entrenched interests that it protects than trying to simply abandon or suppress use of the term and what it represents.
Even if Stallman's proposed adjustment to language is intended as an antidote to those who modify the meaning of traditional legal concepts in their quest for further intellectual propertization, it also sidesteps fundamentally important jurisprudential questions about why the term 'intellectual property' has been so powerful.
Even if it were possible to remove 'intellectual property' from use in popular and legal language, this seems unlikely to happen in the near future.
No matter how much one might sympathize with Stallman's frustration about use of the term 'intellectual property,' its demise does not seem imminent.
A fruitful alternative is to recognize and address the symbolic power of 'intellectual property'

Confronting the Charisma of 'Intellectual Property'

Mark Lemley identifies several reasons for the popularity of the term 'intellectual property', including its 'sexiness' and the glamorous images it conjures, and its ability to unite disparate legal doctrines.
He notes that it builds a link to the 'rich and venerable legal and academic tradition of property law' and, flowing from that, it tacitly encourages an allusion to be drawn between 'intellectual property' and the legal and philosophical justifications for tangible property.
This streamlines the importation of the justifications for tangible 'property' into the rules of 'intellectual property', even though the subject matter and application of the two departments of law can be distinguished in many ways.
The importation of the principles applied to tangible property is frequently observed in calls for new intellectual property doctrines or expanded rights within existing doctrines and, intellectual property' is often defined in terms of property.
This tactic has great symbolic force, and 'intellectual property' seems to occupy the most headlines and attract the greatest public interest when it comes in the form of passionate pleas from celebrity authors, songwriters and performers who want increased 'property' rights over their compositions.
Singer Cliff Richard's argument that UK performers should have extended royalties on old recordings as a sort of pension fund is echoed by others with vested interests.
It is far more emotive and symbolically powerful to personalize an argument by portraying the expiry of a copyright period as a confiscation of a much-loved celebrity's property than simply as the conclusion of a temporary legal privilege.
Celebrities' cries for intellectual propertization can be very effective.
In 1998 the US Congress passed the Sonny Bono Copyright Term Extension Act, extending copyright terms by twenty years following emotive arguments by congresswoman Mary Bono and others with vested interests.
Mary Bono happened also to be the widow of Sonny Bono, actor, singer and congressman, and she claimed that her late husband had 'wanted the term of copyright protection to last forever.'
The passage of the bill into law surely reflects the power of symbolic arguments about rights over intellectual property.
Once the power of emotional attachments to a society's celebrities (real and fictional, human and animated) was harnessed, the charm and charisma of intellectual property started to reflect that of the sentimental objects with which it was associated.

The Realpolitik of Intellectual Property

Richard Posner's mention of the Walt Disney Corporation alludes to a related and extremely successful strategy employed by corporations and industry bodies to bring about widespread and pervasive changes in the law.
The interested parties that fall within this group often predict terrible social consequences in the absence of such amendments.
Lobbying for the acceptance of a message that harnesses the symbolic power that has come to be associated with 'intellectual property' can be a very effective strategy, and it is not confined to single industries or jurisdictions.
For example, the 1994 Agreement on Trade Related Aspects of Intellectual Property (TRIPS) of the World Trade Organization (WTO) - arguably the most comprehensive and pervasive intellectual property treaty to date - resulted from an organized campaign of lobbying begun by US-based companies rich in intellectual property assets.
This industry organization lobbied the US Chamber of Commerce and industry groups within the United States, arguing that it would be in the national interest to link intellectual property issues to international trade negotiations.
IPC's members persuaded industry counterparts in Europe and Japan to lobby their own governments with the same message, and a loose grouping of diverse industries and nations united behind a perception of the common good of targeting foreign free-riders who failed to respect their intellectual property interests.
The political maneuvering that culminated in this outcome were intricate, and the inclusion of the term 'intellectual property' in the Agreement's title is symbolically significant as it reinforces the impression that 'intellectual property' is a coherent object and that it has an inherent relationship with trade.
Such uses of the term tend to implicitly portray intellectual property as something that has a prior existence to the law and one separate from it.
By depicting 'intellectual property' as something that exists separately from the law by which it is enforced in society, they bypass normative consideration of whether it should exist at all and, if so, in what form.
The usually unspoken assumption in such discussions seems to be that 'intellectual property' is a term that describes an object to which 'intellectual property rights' (often referred to as IPRS) can be attached.
Rather than focusing on the substance of what they would like to have legal rights over, to control or profit from, those who call for the regulation of their intellectual property tend to make a moral claim.
To cast this as a claim to 'intellectual property' is to implicitly align their claims with the usual jurisprudential justifications that are given for intellectual propertization.
However, by referring to 'intellectual property' in this way, they are not making a claim to any particular object, or to a right to control a particular object unless the term 'intellectual property' clearly refers to a specific object or thing.
Many would contend that it does not and that the concept of 'intellectual property' is a relatively recent development whose modern origins can be traced from specific legal systems.

The Growth of the Idea of 'Intellectual Property'

The emergence of intellectual property as a distinct department of law did not begin until the mid-nineteenth century.
Indeed, the development of modern ideas about intellectual property during this period was characterized by disagreement about the organization of this area of law, and the contemporary taxonomy of intellectual property and its doctrines did not arise until sometime later.
Sherman and Bently explain that it was generally agreed that there was a category of laws that rewarded creative mental labor with property rights, but it was such that 'no one model or image had yet come to dominate as the accurate representation of the law.'
The result was a lack of consensus and a consequent variability that could be observed in the diverse arrangements made with respect to textbooks and libraries, legal and administrative categories, the use of relevant language and concepts, and the choice of which subject matter became objects of 'intellectual property' rights.
It took some time before terms such as 'industrial property' and 'literary and artistic property' gave way and their subject matter converged into 'intellectual property'!
A product of the Industrial Revolution, the term 'industrial property' was enshrined as a description for patent and trademark law in the Paris Convention for the Protection of Industrial Property (1883).
It originally included 'patents, industrial designs, trade marks and trade names' and, in its latest iteration, has come to extend to patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition.
It now applies to industry, commerce, agricultural and extractive industries, and to all manufactured or natural products, such as wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour.
Meanwhile, notions that are familiar to modern copyright law fell within the vaguer category of ‘literary and artistic works’ in the Berne Convention for the Protection of Literary and Artistic Works (1886).
As the scope of these doctrines expanded and their practical and political importance grew, institutions were established to administer them. Key among these is the World Intellectual Property Organization, and Mark Lemley argues that the term 'intellectual property' came into vogue only after the creation of this institution in 1967.
This historical fact is not usually highlighted by those who use the term 'intellectual property'.
In a sense, the history became largely irrelevant for practical and political purposes once a hegemonic taxonomy of intellectual property had been established.
Claims tend to focus on contemporary interests and conditions rather than the historical development of 'intellectual property' as a department of law or term of art. This is only to be expected when the historical development of 'intellectual property' could also be inconvenient to those calling for new and greater recognition and regulation of intangible material over which they would like to exercise rights.
A review of the historical origins and development of the term reinforces the sense that 'intellectual property' is a relatively recent and ill-defined expression whose meaning is confusingly uncertain.
However, drawing attention to this is less likely to win friends and influence people to support intellectual propertization than is appealing to property language that implies that intellectual property has a fixed meaning and dates from time immemorial.

Conclusion

The failure to meaningfully define 'intellectual property' is typical of discussions about intellectual property policy.
Without a clear definition of what is being discussed, it is perhaps not surprising that many discussions about 'intellectual property' seem to 'talk past each other'.
In a world in which the term 'intellectual property' is used to attract attention, summarize moral arguments, focus concentration, and persuade law-makers to change policy, it is worrying that the term is used so loosely.
The social consequences of political discussions about 'intellectual property' can be dramatic, yet it is not always clear exactly what is being spoken about.
So what does 'intellectual property' mean? With so much riding on an understanding of this term, defining it clearly is a far from trivial matter.

Common Methods of Defining 'Intellectual Property'

Even when attempts are made to define what is meant by the term 'intellectual property', the findings are generally unsatisfactory.
There are many techniques by which a legal definition of a term can be obtained.
Classic examples include establishing exhaustive tests for what falls under the label, referring to the etymology of the term, explaining the intended use of the term in any particular context, or explaining why the term is politically important or philosophically interesting.
Yet definitions of intellectual property are typically superficial.
These can be easily called into question or can themselves require further definition before they become at all informative.
This can arguably be explained by the manner in which such definitions are composed.
The type of definition explicitly or implicitly offered usually reflects the reasons for the discussion, which are likely to be descriptive, evaluative, prescriptive, or a combination of these.
As the methodology adopted in the task of defining 'intellectual property' influences the explanation that results, it is important to consider how various definitional techniques operate, so that this can be overtly acknowledged.
The purpose of this section is therefore to provide an overview of some of the techniques commonly employed to define 'intellectual property':
- intellectual property is the enumerated sum of its legal doctrines;
- intellectual property is the enumerated sum of the objects it regulates;
- intellectual property is a type of 'property';
- intellectual property is whatever the law stipulates it to be; and
- intellectual property is whatever it is intuitively felt to be
These approaches are not mutually exclusive and they are probably not exhaustive.
They operate on different levels and they sometimes overlap, but they have been separated (somewhat artificially at times) in the current discussion for ease of examination.
The following survey gives examples of how each type of definition of intellectual property is used in practice, and it comments on the sort of insight that each type of definition offers about the nature of intellectual property.
To foreshadow the conclusions of this chapter: Each of these definitions serves a practical purpose, which may be functional (eg, useful for the day-the-day practice of intellectual property law) or political.
In serving these functions, each also plays a self-reinforcing role in promoting the evolution and importance of intellectual property law.
However, each of the techniques surveyed here also produces largely empty definitions that tell us little or nothing about the content or function of 'intellectual property' or the law that creates and regulates it.
As will become apparent, these approaches are parts of a functional legal system for classifying and standardizing intellectual property, but they shed little light on what constitutes the 'intellectual property' that is being regulated in this way.

Definition by Enumeration

Definition by enumeration (extensional definition) occurs when a definition contains a list of things that constitute the object being defined.
The list of components may be representative or it may be exhaustive.
However, even when a complete list is offered, definition by enumeration lacks a description of the criterion that explains what those constituents have in common.
Definition by enumeration is thus missing the factor that would enable someone unfamiliar with the subject to determine whether or not something is an instance of the object being defined.
Definition by enumeration is very common in discussions about intellectual property law, where it tends to take one of two forms: it either treats intellectual property as the sum of its constituent legal doctrines or treats it as the sum of its objects of regulation.
Neither type of enumerated definition of 'intellectual property' tends to be particularly helpful in shedding light on the nature of intellectual property.

Intellectual Property as the Enumerated Sum of Its Legal Doctrines

Departments of law’ is a term coined by Ronald Dworkin to describe the various areas or doctrines into which the legal system is compartmentalized.
For the purposes of the current discussion, 'intellectual property' can be considered to be a department of law while its sub-categories, such as copyright, patent and trademark law, can be considered to be intellectual property's constituent doctrines.
The sort of enumerative approach that treats 'intellectual property' as the sum of its legal doctrines involves being able to identify when a rule found in an intellectual property doctrine is the appropriate legal principle to apply in a given set of circumstances.
Definition by enumeration assumes the pre-existence of categories into which objects are sorted.
This is not philosophically rigorous, and it is therefore a pragmatic approach to legal definition that depends on the existence of earlier determinations about what does or does not fall within a legal department or doctrine.
It is therefore of little assistance in determining whether something should be classified as intellectual property in the first place: its value lies in determining what falls within already established intellectual property doctrines.
In Anglo-American approaches to legal training, students are taught to think like a lawyer.
In the context of lawyers learning the idiom of activity, this arguably means becoming adept in the law's prevailing interpretive traditions, such as statutory interpretation and application of the doctrine of precedent.
Before employing those interpretative tools in a given case, lawyers must be able to identify the relevant legal department within whose ambit a fact situation might fall and within which certain types of legal rules that apply to certain types of factual situation are collected.
Once the appropriate legal department is (or departments are) identified, the correct departmental and doctrinal rules can be applied.
This perspective follows Hans Kelsen in portraying law as a scheme of interpretation in which legal departments and doctrines are the organizational categories.
'Intellectual property' is a departmental term under which certain legal doctrines are collected, and it is part of a lawyer's repertoire of skills to be able to determine whether or not an object or type of behavior falls within the ambit regulated by an existing doctrine within a given jurisdiction.
However, correctly identifying that copyright is a doctrine of intellectual property law is not particularly helpful if the relevant rules of copyright law cannot be appropriately applied.
It is the rules of intellectual property's constituent doctrines that are important, rather than the name of the overarching department that is used for organizational convenience.
For example, it is of little use to identify a piece of material as being covered by intellectual property law unless one can explain which doctrine it is regulated by and can discuss consequences arising from the conclusion.
The problem with this form of enumerative definition is that it focuses on the organizational structure of the law but tells us nothing about the content of a department or why a legal problem should be classified within it.
It thus leaves unanswered a number of fundamental questions.
- What are the characteristics of the legal problem that make it fall within a particular organizational category?
- What are the characteristics of doctrines such as copyright, patent, and trademarks that lead to their being categorized as doctrines of the organizational department of intellectual property?
For answers to these sorts of questions, it is necessary to look to a different sort of enumeration, or perhaps even a different sort of definition or explanation of 'intellectual property' altogether.

Intellectual Property as the Enumerated Sum of Its Objects of Regulation

A common, and perhaps even the standard, method of defining 'intellectual property' is another type of definition by enumeration.
This version offers an inventory of intellectual property's doctrines and the objects and rules that fall within them.
It attempts to define by categorizing content, implicitly suggesting that intellectual property is the sum of its ingredients but not explaining why those ingredients have been chosen.
This definitional method creates a taxonomy of intellectual property by trying to classify objects under the headings it has nominated.
It is therefore a 'micro-version' of the definition by enumeration approach because it focuses on the smaller parts that contribute to the whole, but it also has the flaw of failing to nominate an accompanying 'criterion' to explain why its components should be grouped together in the same category.
This version of the definition by enumeration approach is in many ways similar to the version described earlier.
While the previous approach focuses on the departments and doctrines that are considered to be intellectual property, thus classifying intellectual property by its overall appearance, an alternative enumerative approach infers a focus on intellectual property's component parts.
Defining a car is rectangular while intellectual property is summed up by copywrite, patent, and trademarks.
Definition by enumeration can be effective to the extent that it provides a framework within which lawyers can categorize behaviors and things into the legal boxes that are required to regulate rights and obligations, and to embark on litigation by articulating a cause of action.
However, definition by enumeration does not capture the essential characteristics that lead to these behaviors or things being categorized as intellectual property in the first place, and it is of little assistance when the identity of the objects regulated by intellectual property laws, and the sorts of rules used to regulate them, keep changing.
In other words, the common approach of defining 'intellectual property' as the enumerated sum of its objects of regulation may be a satisfactory tool for practitioners to work with once the term 'intellectual property' has already been applied to an object.
However, it does not assist in determining whether it should be applied to the object in the first place, because it does not tell us what 'intellectual property' is or what it comprises.
A definition by enumeration approach is therefore more likely to be useful as a method of working with intellectual property law at a practical legal level than as a way of understanding what the term 'intellectual property' really implies.
It is a workable method of grouping objects into pre-established legal categories, but it is not as helpful when it comes to establishing or determining the nature of those categories in the first place.
Textbooks and the very organizations that are responsible for organizing intellectual property laws typically employ an enumerative technique for defining intellectual property.
Such definitions catalogue the sorts of things affected by intellectual property law and hint at what these might comprise, but they do not elucidate the essence of intellectual property.
They do not tell us what 'intellectual property' is or what binds its constituent doctrines together.
Even international treaties that govern intellectual property can be obtuse in this way.
This tendency towards the opaque is also found in the WTO's TRIPS Agreement's definition of 'intellectual property', which suffers from the same weakness as that of WIPO.
Defined in this way, the meaning of 'intellectual property' is clearly not static.
Zheng Chengsi has observed that 'know-how', 'folklore,' and 'personal data protection' were added to the realms of 'intellectual property' during the 1980s, thus altering the existing implication of the term, and has argued that the new doctrines and rights should instead be referred to as 'information property' in order to safeguard the traditional meaning of 'intellectual property'.
Regardless of whether one agrees that changing the terminology would save the meaning of 'intellectual property', which is arguably contested and uncertain anyway, the point is well made about the flexibility and questionable utility of a term whose meaning keeps shifting.
Apart from its failure to capture the essence of intellectual property, a distinct problem with the potentially endlessly reductionist enumerative method of defining intellectual property is that it provides a definition composed of other legal definitions, and these definitions are built entirely on a pyramid of interdependent concepts rather than on words that are generally agreed to refer to specific types of behavior, emotions, or objects.
This is not a materialist claim that the meaning of words can never be fully knowable unless they refer to tangible objects, but an argument that a lack of agreement about the determinative criteria of 'intellectual property' makes enumerative definitions of the term both dogmatic and unverifiable against objective measures.
The weakness of enumerative definitional techniques is that they do not set out this conceptual system.
So even if one understands how the statements contained in the description of intellectual property operate in practice, it still leaves the question begging: What is intellectual property?

Defining Intellectual Property as a Type of 'Property'

One method to address the difficulty of explaining what intellectual property actually is rather than just enumerating instances of it is to define it as a 'type of property.'
Indeed, the very label 'intellectual property' suggests this conclusion.
Thus, intellectual property is frequently defined as 'property' in an intangible object, and a recurrent theme permeating attempts to define 'intellectual property' involves allusions to the concept of 'property'.
It is common to see 'intellectual property' or its doctrines likened to the pre-existing legal department of 'property' law, followed by an attempt to explain why it is or is not 'property'.
Each of these examples considers whether intellectual property is an intangible form of 'property'; but in each case the conclusion also hinges on the prior definition given to the concept of 'property'.
Not all commentators welcome this approach.
`Property' is a concept that is notoriously difficult to define.
Disagreement over what the term 'property' means results in its sometimes being used in a manner that is both philosophically and legally ambiguous.
'Property' means different things in different contexts.
The difficulties are compounded when it comes to capturing the essence of 'intellectual property'.
If we are in disagreement about or unclear as to the meaning of 'property, how can 'intellectual property is a type of property' be any less opaque?
With the nature of 'property' itself so disputed, simply adding 'intellectual' to the property equation does little to clarify the definition: it suggests an intangible or imaginary form of whatever is implied by the term 'property'. The result is an intensely flexible, and consequently a very vague, outcome in which intellectual property can be virtually any incorporeal thing that its definer wants it to be.
A definition of intellectual property as an intangible form of property thus fails to describe clearly what the term refers to.
Contracts may be treated by the courts as 'property' that can, for example, be bought or sold. But is 'contract law' an intellectual property doctrine?
What about human rights? Are human rights intellectual property? Human rights are arguably intangible and many are legally enforceable.
The answer is arguably that something beyond 'intangible' 'property' needs to be added before a useful definition can be given of intellectual property. This is again a call for a criterion to determine what constitutes intellectual property, and this criterion must arguably be concerned with the content of intellectual property. Its identification requires recourse to an alternative definitional technique.

Stipulative Definition

From a more academic perspective, the stipulative definitional approach can be described as the explicit and selfconscious setting up of the meaning-relation between some word and some object, the act of assigning an object to a name (or a name to an object), not the act of recording an already existing assignment.
The essential characteristic of stipulative definition is the 'deliberate arbitrary, selfconscious choice of a name for a certain thing, or of a thing for a certain name.
According to this method, 'intellectual property' is whatever law-makers stipulate it to be.
Stipulative definition occurs, for example, when the subject matter regulated by intellectual property law's doctrines become 'property' - however that may be defined - simply because the law stipulates that that is what they are.
However, stipulating that x is y is different from explaining the nature of x.
It does not, in itself, tell us about the characteristics of x or y.
It may have practical utility in context, but in itself it is of little assistance in determining the nature of the object being defined.
For the purpose of regulating 'adventure activities' in the United Kingdom, ice skating and other ice-related activities are legally stipulated to be 'skiing'; this may have practical utility, but it does not explain much about the nature of skiing as an activity.
Similarly, stipulating that a particular object or legal doctrine is 'intellectual property' may have practical utility, but