History of the Reification of the Intellect

Molinari Society’s 2009 Symposium on Intellectual Property

by G. Nazan Bedirhanoğlu

Although it has not been a very long time since intellectual property rights began to surround everyday life, powers such as large corporations, states and international organizations seem to have already established the representation of intellectual property protection as an inextricable part of all tangible and intangible products, through the institutionalization, codification and enforcement of an intellectual property regime at the global level. A broad range of issues, such as access to pharmaceuticals, research on biogenetics, use of software, access to artwork, protection of indigenous knowledge, protection of innovation, conduction of patented research in universities, counterfeit production of trademarks, plagiarism in academic works, geographical indications of agricultural production, seeds in agriculture are part of intellectual property regimes. Given the diverse scope of intellectual property related subjects, it becomes harder to see the broader picture in which these property protection and social relations producing (and being affected by) these arrangements are embedded.

The genealogy of the term “intellectual property” both reveals and conceals the history of intellectual property law, political and ideological contestations and the technological developments entailing intellectual property. Although the terms industrial property, authorship rights and copyright were in use since the 17th century, the term intellectual property first appeared in 1845, according to the Oxford English Dictionary (Hesse 2002). Prior to 19th century, the term appears only once in US federal court reports (Fisher 1999). The term had been widely in use in the second half of the 20th century. The very extensive contemporary use gained its impetus with the inclusion of intellectual property issues to the GATT negotiations (1986) and peaked with the global enforcement of intellectual property rights by the TRIPS Agreement (1995). However, tracing the creation of a linkage between “ideas” and “property” has more explanatory power in understanding the contemporary conceptualization of intellectual property. Accordingly, my question in this paper is formed as “What are the processes that transformed knowledge, information and intellect into property?” This task paves the way for situating intellectual property protection in a sociological inquiry by scrutinizing the relations of production they are embedded in, rather than particularly focusing on the intellectual property categories themselves as the legal, economics and the international relations studies do. To this aim, I will try to incorporate the studies of “science and technology” and “sociology of law” in a historical perspective of organization of production relations.

I. Historicizing Intellectual Property

Discussion of the temporal-spatial dimensions of intellectual property is related to the contemporary global norms of intellectual property. Since one-size-fits-all intellectual property regulations are being enforced worldwide, the changes in this conceptualization throughout the time provide a point to challenge universal-timeless regulations and to argue for differential treatment under contemporary multilateral governance of intellectual property regime.

In the literature, although there are some accounts of the history of the intellectual property which trace this concept back to Chinese Zhou’s Dynasty and Greek city-states (Ostergard 2002); these forms of knowledge protection did not have the commercial aspect of contemporary intellectual property. These early antecedents of intellectual protection were not about the commodification of knowledge. The nascent form of intellectual property emerged with the Venice’s first patent statute in 1474. This had been the first incident where patents had been subject to a generalized law, rather than an individual petition or grant. This form of intellectual property protection expanded to continental Europe and Britain. The outstanding documents in British law, 1624 Statute of Monopolies (for patents) and 1710 Statute of Anne (for copyrights) are often evaluated as the modern roots of intellectual property law (Sherman and Bently 1999). Development of intellectual property as a legal form cannot be separated from the specific early history of capitalism in Europe (May 2007). This association reflects the commodification of the ideas in the production of the goods.

The history of intellectual property protection also reflects some disruptions as well as continuities. The age of second industrial revolution in late 19th century brought 1883 Paris Convention for the protection of industrial property and 1886 Berne Convention for the protection of literary and artistic work. These two conventions are the first examples of the internationalization of intellectual property protection. However, until the developments in 1970s and the so-called information revolution, the intellectual property was regarded as embedded in the goods, rather than being alienable. In the period of craft production, the relation between material production and the ideas involved in it were not alienable. The guild system protected the activity of production itself. With the industrial revolution, the idea of patent protection emerged. This industrial form of intellectual protection was designed to protect the “mechanical reproduction” (Benjamin 1936) of the goods, meaning that there was a protection on the object, and the ideas in the production of that object were not separable. The 1883 Paris and 1886 Berne Conventions on patents and copyrights were aiming to protect the mechanical reproduction of the products as the outcomes of the intellect. However, the contemporary global regime of intellectual property rights operates with the assumption that intellect embedded in goods can be alienated and protected separately. The current global arrangements regulate the protection of the intellect by detaching from the producer and the production. Thus the relations between the producers of the knowledge, process of knowledge production and the access to knowledge had undergone a deep transformation with the current global intellectual property rights regime.

II. The Sociology of Intellectual Property Law

The conceptualization that an idea can be owned, first of all requires the understanding that humans are creators of new ideas rather than knowledge coming from eternal varieties. This makes the conceptualization of intellectual property a child of European Enlightenment (Hesse 2002).

Justifications of intellectual property protection also assume the commodification of intellect for market purposes and are generally derived from the justifications of property, such as Locke’s labor theory of property or traditional doctrine utilitarian inference (Ostergard 1999). Intellectual property is about the ownership of intangibles, rather than property in tangibles. With the contemporary conceptualization of intellectual property, objects of property is expanded even through living objects. Subject of property varies, even though in reality it is large corporations, not the creators most of the time.

In one of the pieces that ask the question of justification, Edwin C. Hettinger’s “Justifying Intellectual Property,” it is argued that the traditional justifications of property become more problematic when applied to the intangibles. Though he says that natural rights to the fruits of one’s labor are not enough to justify the new forms of intellectual property, they are relevant to the social decision to create and sustain intellectual property institutions. He is calling for new ways other than the intellectual property to reward and stimulate intellectual labor. The most common mainstream justification of strong intellectual property protection is the idea that it bolsters innovation and progress. In addition, danger posited by counterfeit and pirated goods to health and safety of people is also argued for stronger intellectual property rights (Choate, 2005). The mistake here is that, the existence of defective goods on the market are not direct result of weak implementation of intellectual property, on the contrary it results from the strong protection and thus creating lack of access to the majority of the people.

The central discussion in the sociology of intellectual property law is about the relationality between the making of this law and the material conditions. This issue is a complex one, given that neither once the material conditions required such global legislation nor the global codification of intellectual property rights created the technological changes. These two processes reproduce each other continuously.

III. Technological Development and Theories of Capitalist Organization

Theories of new economy account for a fundamental transformation in the nature of capitalism and lead to a new understanding of the society. Having the belief that a shift from industrial capitalism to this new form has occurred, the crux of these arguments is that driving force of this new era is not the production of commodities but the production of information (Rifkin 2000; Bell 1974; Drucker 1963; Castells 2000). However, this conceptualization of transformation from “agriculture through industrialism to informationalism” tend to “naturalize factors of production, obscuring the conditions under which they enter the economic process and get combined to produce goods and services. They thereby reproduce the fallacy, criticized by Marx, that value is rooted in immanent, eternal qualities of things rather than in social relations.” (Jessop 2003). Explanations for these drastic changes involve the assumption that the source of value produced is now being shifted to concepts, ideas, intellect, knowledge rather than material production itself; thus intellectual capital is presented as the driving force of the era. At the conjuncture of this drastic transformation, a very substantial form of this change is the concretization of intellectual property, rights attached to it and its protection. Intellectual property, as a legal form, appears as a part of this shift as means of control over intangible assets. Although the protection is now on the ideas rather than the production process itself, arguing that value comes from the intellect not the production processes; it is still necessary that intellect needs the production processes in order to realize the assumed value in itself.

By regarding information as the main source of wealth, social theory of information society tends to justify the existing regime of intellectual property which eventually undervalue the interests of both the sources of and the audiences for the information which is commodified (Boyle, 1997). Some argue that the importance of knowledge and information is not a new source of value in the capitalist production with reference to Veblen and Schumpeter (Gagnon 2007).

The contemporary global intellectual property regime was mostly a creation of the US based corporations (Brown-Keyder 2007). However, coming to this position the US did not follow the path of current intellectual property protection. In the late 19th century and early 20th century, the US rejected to comply with the international regulations of industrial property and copyright. Not until 1989, the US was part of the Berne Convention arguing that the US had the right to import technology. A new business model was introduced by the German industry in late 19th century eclipsing inventor-entrepreneur with professional research and development departments and the protection from German state from foreign competition helped the German firms to dominate chemical industry before the World War I. US companies adopted this model in the 20th century. As Chandler suggests these US management “techniques and procedures perfected in the first years of the 20th century … have remained the foundation of business administration” (Chandler 1977, 289). This kind of a business administration model with corporate patent departments set the ground for multilateral arrangements of intellectual property protection in the TRIPS Agreement.

Nevertheless, the technological developments both created the new issues of intellectual property such as genetic engineering, pharmaceutical production, softwares etc. as well as the intellectual property protection issues such as digital piracy, biopiracy, etc… Promises of the information age and technological progress are being forestalled by the enclosure of the intellectual production. Implementation of strong intellectual property rights result in exclusion and deprivation from access to knowledge and other outcomes that are protected by this regime. The issue of deprivation is a complex one given that the holders of the intellectual property rights are most of the times not the creators, but the large corporations.

The discussion on the public and private domains; social, legal, and political dimensions of this division provide a basis for evaluating the transformation that made the reification and commodification of intellect possible. In this sense, the current level of intellectual property protection represents an anomaly in the history of intellectual property. The public dimension of the intellect and the private usage of public resources backed up by intellectual property regimes lie at the heart of this division (Sell 2003). Thus both by allocating the public resources to the private sphere for corporative interests and by depriving people from access to intellect by strong intellectual property protection is criticized. However, on the epistemological basis this discussion has its own problems. In order to overcome the shortcomings of the public/private distinction, the history of the very self of this distinction can be analyzed in relation to the idea of making intellect private property. Having said that both of these conceptualizations have their roots in the emergence of historical capitalism and are entailed by the social and economic formations, new areas of inquiry regarding the perception of intellect as public can be opened up.

In this context, Christopher May opens up a better space saying that “construction of social division of labor through the imposition of property relations, especially as regards to those ‘things’ previously were not property” serves as a basis of primitive accumulation that includes intellectual property rights (May 2006). Paul Fairfield draws the distinctions between conventional property and intellectual property and argues that ideas themselves do not form intellectual property, but the concrete expressions of the intangibles are regarded as intellectual proprietary objects (Fairfield 2005). Thus the process of reification here is not the concrete outcome of the intellectual labor, rather than it is the process that the concrete outcome of the intellectual labor goes through. Bob Jessop here underlines the “primitive accumulation of capital in the form of intellectual property through private expropriation of the collectively produced knowledge.” The commodification of these intangibles requires a market price to be paid “when the application of knowledge to the production of immaterial goods and services becomes a distinct function within the division of labor” (Jessop 2007). Different legal forms of intellectual property are direct outcomes of this commodification process. The tension created by intellectual property protection motivates widely varied counter-movements, such as open source movements, generic drug production, intellectual commons, GNU coded software and copylefts.

G. Nazan Bedirhanoğlu
Sociology, SUNY Binghamton


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