Intellectual Property, Abstract v. Natural Right, Part I

Since I’m having a hard time writing new material due to physical limitations more than creative ones, I’m taking a paper I wrote and breaking it into a bunch of blog posts.

This is a (very incomplete) background on the concept of intellectual property in the Western world, but it’s here to give some context for the philosophical and legal background behind our current incarnation of intellectual property laws.  It seems like most of our recent discussions of intellectual property laws are broken down onto two sides: “the artist needs to get paid” vs. “our current IP laws are broken and useless”.  Rather than start there, with all the present-day context that includes, I’m going backwards and suss out where all that context comes from.  Also: after the Hobbes posts of last month I want to push out some verbiage on somebody else in the Phil department.

The original paper is 7,115 words and 28 pages long, so it’s going to be broken into digestible parts.  For context: the series of posts focuses mainly on Section I: Property and Section 2: Contract of Part I: Abstract Right of the Cambridge Texts edition of Hegel’s Elements of the Philosophy of Right, and certain excerpts from The Second Treatise of Locke’s Two Treatises of Government, notably Chapter 5: Of Property.  We’re going backwards, so we’re going to have three posts: this one, which lays out the recent and then somewhat less recent history, and then a whopper on Hegel, and then a final post on Locke.  Unlike my other multi-part posts, these ones are pretty much all already written and I just have to put in some relevant links, so you might actually see them all this week!

Some historical and current social context is necessary to properly discuss the philosophical theory of intellectual property and how it intersects in general with the modern concept of intellectual property.

In 1998 the U.S. Congress passed the Sonny Bono Copyright Term Extension Act, which extended the terms of legal copyright in the United States to “life of the author plus 70 years”, and for works of corporate authorship to “120 years after creation or 95 years after publication, whichever endpoint is earlier”.  It was the second extension to U.S. copyright law in 22 years, but only the third in the 20^th century.  The term of a patent issued in the United States is now 20 years.  In the post-industrial, knowledge-based economy of the 21^stcentury, business method patents are valuable commodities worth billions of dollars, as evidenced by Google’s $12.5 billion dollar purchase of Motorola, largely to acquire the 24,000 patents owned by the device manufacturer.  Trademarks, as intellectual property, have no effective termination date; provided the owner of the trademark continues to exercise it, the trademark never enters the public domain.  Even a cursory glance at net income for large corporations shows a correlation between intellectual property (whether it be copyrights, trademarks, or patents) and many of the highest earning entities in the modern economy.  Trademark value is legally recognized as an asset (Goodwill) by general accounting principles.

The differences between copyright, trademarks, and patent – from a philosophical standpoint – are significant, and will be described more fully later.

The first patents in England were not recognition of inventor’s property rights, at all, but instead a grant of monopoly from Queen Elizabeth I in the late 1500s; rather than an acknowledgement of the production of the intellectual good (and the inventor’s or author’s right of possession thereof), it was instead the investiture of a royal privilege to a vendor.  This is relevant because prior to the 1500s, of course, there was no real idea of the “pursuits of the mind” having any essential elements that would render them to be considered “property” in any real way.  There was no movable-type printing press prior to the mid-1430s.  There was no mass-scale industrialization, so the reward of the inventor of a mechanism was largely his or her competitive advantage over their brethren.  Artists were commissioned by patrons, and access to the patron was of course largely limited to those who were of the same socioeconomic class, but of course people from the lower classes didn’t really have the economic freedom to pursue art as a career in the first place.  Undoubtedly this led to many the Gentileschi dying of cholera in the field, having manned a plow all her life, but the justice of pre-Enlightened societies is a digression (Aristotle, of course, would have thought the entire idea of intellectual property utterly crass, as men of the mind should not sully themselves with thoughts of anything so base as commerce.)

Essentially 200 years will pass before both political philosophy and encoded law supported the concept of intellectual property as we currently recognize it.  The Licensing of the Press Act in 1662 was the next major step in copyright in England, where the Stationer’s Company was granted an exclusive monopoly on the printing press, effectively granting it monopoly publishing rights.  In a way, this early patent created copyright.

In 1710, the Press Act was replaced by the Statute of Anne, which transferred the formal issuance of copyright out of private hands and into the hands of the government.  England’s Statue of Anne removed the dependency on the Stationer’s Company and granted copyright to the author of a work, rather than the publisher, for a term of 21 years for preexisting works and 14 years for works created thereafter.  The Stationer’s Company lobbied for the Statute of Anne under the idea that authors deserved to own their creations, a natural law argument that likely appealed to the House of Commons (who had refused to extend the Licensing of the Press Act) but was going to benefit the Stationer’s Company as they still owned the monopoly on the printing press.  Irony may not be lost on the observer.  The Statute of Anne technically did not apply in the Colonies, and indeed the original Articles of Confederation did not endow the Continental Congress with the power to issue copyright.  American copyright law (as originally passed in 1790) is largely similar to the Statute of Anne.

The codification of the concept of intellectual property in political theory largely occurred in the early 18^th to early 19^th century, beginning soon after Locke’s Two Treatises was first published in 1689 and running concurrent to Hegel’s political writings, finalizing in the first international recognition of intellectual property law in the first Berne Convention for the Protection of Literary and Artistic Works in 1886, 55 years after Hegel’s death .

Additional Reading:

Mossoff, A. ‘Rethinking the Development of Patents: An Intellectual History, 1550-1800,’ Hastings Law Journal, Vol. 52, p. 1255, 2001

Patterson, L. “Copyright and the ‘Exclusive Right’ of Authors”, Georgia Law, 1993.  Available here.

Lange, David, “Recognizing the Public Domain”, Law and Contemporary Problems, 1981

Renouard, Agustin-Charles “Theory of the Rights of Authors in Literature, Sciences, and the Fine Arts”, 1839