[Commons-Law] "Intellectual Property" - the word(s)

[Lawrence Liang]

Hi Patrice and Prashant

Thanks for your mails, I also want to add some stuff which is culled from
the notes that I made from Peter Drahos's Philosophy of Intellectual
Property which may help stretch the time line of the debate further


Lawrence

* What we know call intellectual property and the unified discourse that it
seems to signify really began as very different things and there is a need
to provide a  historical account of the emergence of this discourse called
IP to interrogate the very basis of why IP protection took the form of a
property jurisprudence
* In roman law there was a distinction between law relating to persons,
things and actions. The law relating to things is further divided in
corporeal and  incorporeal. Where does the idea of incorporeal emerge from.
In stoic philosophy, 4 things are considered to be incorporeal namely time,
space, void and lekta (meanings of words and sentences)
* Lekta- is something that is expressible but not to be confused with the
material expression; so they are signified meanings which are logically
distinct from their physical representations or communications. Lekta are
causally inert objects until they enter into a person¹s belief systems.
* Once then enter into the realm of the bliefs of people, then they become
corporeal objects, but there is something that has to be done before the
lekta achieves a sense of being in the physical  (similar to the modern day
requirements of fixation and tangibility and various procedures of
disclosure etc before one ca claim an IP right)
* This process of significaion does two things:
> * It firstly creates signifiers (physical representations )
> * It also generates entities with a specific meaning, which in the language of
> the stoics amounts to the creation of an expressible
 
* An expressible is also an abstract entity but it also has a convenient
mental fiction. Once this abstract object enters into the world of the
corporeal, by becoming embodied belief, it can lay a causal role in the
social and productive relations between people. At the same time because it
affects relations between people, it also becomes the subject of legal
regulation 
 
* The contradiction in roman law is that while there is a category of the
incorporeal  and this also relates to the idea of legal rights, they are
still firmly rooted within corporeal objects.
* The link between an incorporeal right and an incorporeal object occurs
when English property law distinguishes various fro of property classified
as choses in action and property rights in chattels
* In roman law the relationship between the incorporeal is not very clear
and while it would be imagined that ownership would be a right incorporeals
since it is a right and a right in intangible, yet it is classified as a res
corporales 
* This distinction or contradiction lay dormant for a long time till the
rediscovery of roman law in the 11th century ( See Harold Berman for an
account of the modern legal system during this period) at Bologna where res
incorporeales starts to find itself into other systems of jurisprudence
including English law where it gets fused with the idea of  rights in choses
(choses in action); when property begins to loose its thinglikeness and
paves the way for a recognition of property as a set of relationships
between persons. 
* Initially common law always restricted assignments of choses in action but
the courts of equity start diluting this  principle and start allowing for
assignments of choses in action
* The linkage of the two begins to then create a very flexible notion of
property and its flexibility arose precisely because it was not limited by
some set of exact attributes.
* The roman law category was then used by the English jurists to fashion a
practical solution to a practical problem. Once the law recognizes property
in abstract objects, the significance of the materiality which governed
property relations in the physical world grew stronger because through
abstract objects many more material object , both in number and in kind
could be reached by individual property owners.
* What was the justification of these rights? English law had to answer
these question in light of patents and copyright. In both cases, the answers
emerged from a highly theological tradition, heavily dependent on natural
law theories of property.



On 6/15/06 8:48 AM, "Prashant Iyengar" <prashant at nalsartech.org> wrote:

> Hi,
> Couldnt resist posting my tuppence on this subject esp since this was
> as big a discovery to me sometime back. I think the myth of the 1960s
> WIPO origin of the phrase "Intellectual Property" is one that accosts
> most new critics of the domain (and stays with some of us for long
> thereafter). However, thanks to the multiplicity of sources on the
> internet, it is also one that is easily identified as being untrue.
> 
> I'm excerpting a portion of the Wikipedia article on Intellectual
> Property History which certainly provides sufficient info to counter
> the myth.
> 
> "As the words indicate, intellectual property is an asset product of
> the creativeness of the human mind, or intellect. The earliest use of
> the term appears to be from an October, 1845 Massachusetts Circuit
> Court ruling in the patent case Davoll et al. v. Brown. Justice
> Charles L. Woodbury wrote in that decision, "only in this way can we
> protect intellectual property, the labors of the mind, productions and
> interests as much a man's own...as the wheat he cultivates, or the
> flocks he rears." (Woodury & Minot, CCD Mass. 7 F. Cas. 197, 1845).
> The term also appears in Europe during the 19th century. French author
> A. Nion mentions "propriété intellectuelle" in his Droits civils des
> auteurs, artistes et inventeurs, published in 1846, and there may well
> have been earlier uses of the term.
> 
> The use of the term to describe these statutorily granted rights has
> increased markedly in recent times, though it was rarely used without
> scare quotes until about the time of the passage of the Bayh-Dole Act
> in 1980 Paper by Mark A. Lemley, "Property, Intellectual Property, and
> Free Riding"; see Table 1, pp. 4-5.. However, worldwide use of the
> term was uncommon until actively promulgated by the World Intellectual
> Property Organization after WIPO's establishment in 1967.
> 
> ..
> 
> The term "intellectual property" does not occur in the United States
> Copyright Statutes, except in certain footnotes citing the titles of
> certain Bills. The term used in the statutes and in the Constitution
> is "exclusive rights".
> "
> 
> Regardless of how old the term "intellectual property" is, it appears
> that patent, copyright and trademarks have been regarded as forms of
> property for quite some time. For instance, I have a copy of the 1906
> edition (first edition 1848) of a book titled "Law of Personal
> Property" by Joshua Williams (Published by Sweet and Maxwell) which
> classifies the three as "Choses in Action" - a kind of property.
> 
> I think it is not viable to mount a criticism against the term
> "intellectual property" from the standpoint of jurisprudence, because
> the term "property" itself has been historically so fluid as to
> accomodate the most uncommon of "things" e.g. goodwill or electricity.
> 
> However, at best one may say that post WIPO, the phrase began to be
> used more commonly than it was before. This popularisation has had
> rabid affects of its own which should not escape mention/condemnation.
> 
> Regards,
> Prashant
> 
> Quoting Patrice Riemens <patrice at xs4all.nl>:
> 
>> For years now I have been fuming agaisnt the use of the words
>> 'intellectual property' - which I always write between brackets,
>> prefering the immo more realistic 'Coasian' monicker 'proprietary
>> knowledge'. I argued that 'IP' was a 'discursive war machine', an
>> ideological term used by large transnational corporations ("and", as I
>> never failed to add, "their allies in big government" ;-) to
>> legitimize, or even moralize, their predatory and monopolistic
>> practices. I also assumed that the term must have been 'invented'
>> fairly recently, say somewhere after WWII.
>> 
>> I was wrong on the last point, and might even have to reconsider my
>> whole position (though, God forbids, not in favor of big business! ;-)
>> Reading a most enjoyable biography of Albert Einstein, I learned what
>> the name was of the hallowed Patent Office, where Einstein strated his
>> salaried career: the "Eidgenossische Amt fuer geistiges Eigentum" (
>> 
>> Federal bureau for intellectual property), and this on the facsimile of
>> a ducument dated 1901. So the thing must have been called like that
>> since inception, I guess somewhere in the mid/ end 19th century
>> (Someone Googles that for me, please? -  my connectivity here sucks)
>> 
>> Therefore, there must have been quite early some form of consensus as
>> to the real existence of such a thing as the property of, if not ideas,
>> at least of the embodiment of ideas, something that many of us tend to
>> find inadmissible or even repugnant.Or is that the eternal imbroglio
>> about 'commercial use'?
>> 
>> OK, maybe you knew this all along. For me it still came as something of
>> a disturbance.
>> 
>> cheers ferom Glastonbury (UK) (Yep, blame it all on the Holy Grail...)
>> patrizio & Diiiinoooos!
>> 
>> 
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