Myths & Metaphors of Private Law and Intellectual Property
McGill University

Seminar "Use / Usage"


Meaning and metaphor:
Associative thinking and the unacknowledged images of "use" in intellectual property

    The Oxford English dictionary defines a metaphor as follows:  A figure of speech in which a name or descriptive word or phrase is transferred to an object or action different from, but analogous to, that to which it is literally applicable; an instance of this, a metaphorical expression.  Adopting this definition, when one refers to the subject matter of copyrights and patents as "intellectual property", one is speaking metaphorically.   "Property" is a particularlyFor Sale descriptive word, even for those who are legally trained and understand that property refers to legal rights, not things.  Legal reasoning does not entirely displace the image of property as object in one’s mind.  What Sherwin refers to as the associative cognitive style of image-based logic is both present and pervasive, the unacknowledged silent partner of legal argument.   The linear thinking of legal reasoning constructs the meaning of property as a legal relationship, what Lametti defines as "a relationship between or among individuals through objects of social wealth".  The associative thinking of image-based logic, however, constructs the meaning of property in terms of the images that come to mind, such as the proverbial Blackacre.

    Sherwin argues that we must acknowledge the presence and power of associative thinking in law.  We are in the midst of an exponential proliferation of images relative to texts as sources of cultural meaning, including legal meaning.   Thus one cannot overlook the manner in which the meaning of copyrights and patents is constructed through the metaphor of property.   Our print-based legal texts are the source of the prevailing understanding of intellectual property rights as negative rights of exclusion, as a market corrective for the public goods problem of non-rival and non-exclusive knowledge assets.  But when copyrights and patents are referred to as intellectual property, meaning is also constructed through the descriptive power of the visual imagery of the metaphor.

    Linear thinking about intellectual property based on textual references is consistent with the acknowledged public goods nature of the subject matter.   Faith in this mode of cognition, however, as a familiar and exclusive source of legal meaning is at best a consoling myth.   Associative thinking need not be acknowledged to have an influence on our beliefs and practices.  Furthermore, this cognitive style is faithful to image, not text, hence the disruptive influence of the misplaced metaphor of property.   Image-based logic is a covert operation, capable of constructing meaning just below the radar, so to speak, of linear legal argument.  Thus holders of intellectual property rights, policy-makers and those responsible for dispute resolution can in good faith profess fidelity to the characteristics of intellectual property, even as they exercise rights, formulate policy and resolve disputes in a manner that belies the presumptively shared cultural understanding of knowledge assets as non-rival and non-exclusive public goods.

    One can see this in the language of use, that is to say, in the way inPirate which use of the subject matter of copyrights and patents is characterized in ways that tend to substitute characteristics more appropriate to the subject matter of property.   When representatives of the motion picture and music industries refer to unauthorized use as piracy, the language of the metaphor is perhaps unintentionally revealing, a signal that the ostensibly shared cultural meaning of knowledge assets as public goods is unstable.

GraphicThe majority reasoning of the Supreme Court of Canada in the Monsanto decision interprets unauthorized use as interference with an entitlement to commercial benefit, thus focusing on the market for actual canola seeds rather than the subject matter of protection as disclosed in (and confined to) the claims.

    Arguably, digital rights management is the most illustrative example of the influence of the associate imagery of the property metaphor, an unconscious assertion of "mine, all mine" that uses technology to eradicate the non-rival and non-exclusive characteristics of knowledge assets.

    One can only imagine how copyrights and patents might be reconceived if other metaphors are adopted in place of the associative imagery of property.

Milk    For example, we might think of intellectual property in the same way as an agricultural marketing board, with intellectual property law functioning as the market intermediary.  Intellectual property law provides a guaranteed return on investment (an incentive) for creators, and determines a fair price for consumers (as opposed to the price being determined by the principles of supply and demand).

    Or we might think of intellectual property as a state corporation, such as a public utility.  Intellectual property law makes decisions about the amount and distribution of knowledge assets based on governmental policy as opposed to the price mechanism.

    We might even characterize intellectual property as a form of state subsidy, similar to payments or preferential tax treatment granted to private corporations.  Subsidies are generally a response to a systemic private sector funding gap in a particular industry or geographical location.  Intellectual property law fulfills a similar function, providing the necessary supplemental financing to the private sector to fund the production of knowledge assets.

    Such metaphors are unlikely to take the place of "intellectual property" as a convenient and inclusive phrase for referring to copyrights, patents and related rights.   But the use of the phrase itself is not so much an issue as the unacknowledged process of associative thinking that accompanies linear legal reasoning in this field.  Once we understand the role of metaphor in constructing legal meaning, we can start to identify the points of disconnect between our formal understanding of intellectual property as public goods and our unconscious tendencies towards reification. 
Wendy Ann Adams