Why then does ‘intellectual property’ remain in use? Because it has polemical and rhetorical value. Its deployment, especially by a putative owner, is a powerful inducement to change one’s position in a policy argument. It is one thing to accuse someone of copyright infringement, and another to accuse of them of the theft of property. The former sounds like a legally resolvable technicality; the latter sounds like an unambiguously sinful act.

roperty is a legally constructed, historically contingent, social fact. It is founded on economic and social imperatives to distribute and manage material resources – and, thus, wealth and power. As the preface to a legal textbook puts it, legal systems of property ‘confer benefits and impose burdens’ on owners and nonowners respectively. Law defines property. It circumscribes the conditions under which legal subjects may acquire, and properly use and dispose of their property and that of others. It makes concrete the ‘natural right’ of holding property. Different sets of rules create systems with varying allocations of power for owners and others. Some grants of property rights lock in, preserve and reinforce existing relations of race, class or gender, stratifying society and creating new, entrenched, propertied classes. Law makes property part of our socially constructed reality, reconfigurable if social needs change.

The resulting legal and economic landscape finds power concentrated in corporations with indefinitely extensible copyright terms, gigantic patent portfolios and politically influential trade secrets – each of which can trigger an endless series of litigious disputes in courts, and induce a chilling effect in the work of artists and innovators, and in the daily affairs of citizens. The indiscriminate use of ‘intellectual property’ has produced counterproductive legislation and policy bolstered by confused and misleading rhetoric directed at our cultural public domain, whose growth is discouraged by a new ‘enclosure movement’ that views culture as a domain of ownership and is keen to accommodate the rights of property owners. In this bargain, we, the users and future producers of culture, are compromised.

This public domain is ours to draw upon for future use. The granting of temporary leases to various landlords to extract monopoly rent should be recognised for what it is: a limited privilege for our benefit. The use of ‘intellectual property’ is a rhetorical move by one partner in this conversation, the one owning the supposed ‘property right’. There is no need for us to play along, to confuse one kind of property with another or, for that matter, to even consider the latter kind of object any kind of property at all. Doing so will not dismantle the elaborate structures of rules we have built in order to incentivise artistic and scientific work. Rather, it will make it possible for that work to continue.