4. Hesse_2002_The Rise of Intellectual Property, 700 B.C._a.D. 2000

8/13/2019 4. Hesse_2002_The Rise of Intellectual Property, 700 B.C._a.D. 2000

1/20

T he concept of intellectual propertythe idea that an idea can be ownedis achild of the European Enlightenment. Itwas only when people began to believethat knowledge came from the humanmind working upon the sensesratherthan through divine revelation, assistedby the study of ancient textsthat itbecame possible to imagine humans ascreators, and hence owners, of new ideasrather than as mere transmitters of eter-nal verities.

Besides being distinctively modern,intellectual property is a dense concept,woven together from at least three com-plex strands of jurisprudencecopy-right, patent, and trademarkeach withits own sources in premodern customand law, and each with its own trajectoryinto our own era.

Still, copyright, and the complementa-ry concepts of authors rights and liter-ary property in continental lawthe

focus of this essayare at the core of themodern concept of intellectual property.It was here in the eighteenth centurythat the language of ideas and prop-erty rst came into contact with oneanother, and rst forged a legal bond.And it was here, too, that the very idea of a property right in ideas was mostsharply contestedat the outset, and tothe present day.

F rom the Heliconian Muses let usbegin to sing. . . . Thus begins HesiodsTheogony, and many other texts of theancient Greek world. The poet spoke thewords of the gods, not his own cre-ations. Knowledge, and the ability tomake it manifest to man, was assumedto be a gift, given by the muses to thepoet. Alternatively, Plato thought that allideas were held from birth in the mind,where they had transmigrated from ear-lier souls. Ancient Greeks did not thinkof knowledge as something that could be

owned or sold. A scribe could be paidfees for his labor, an author awardedprizes for his achievement, but the gift of the gods was freely given. And thus thelibraries of the ancient academies werenot sold, but were instead transmitted asgifts to the teachers most worthy suc-cessor. Socrates held the Sophists in con-tempt for charging fees for their learn-ing.

26 Ddalus Spring 2002

Carla Hesse

The rise of intellectual property,700 b . c . a . d . 2000:an idea in the balance

Carla Hesse is a professor of history at the Univer- sity of California, Berkeley. Her current researchinterests include legal and cultural aspects of polit-ical violence, in particular the French Terror of 17931794. She is the author of Publishing andCultural Politics in Revolutionary Paris (1991)and The Other Enlightenment: How FrenchWomen Became Modern (2001).


2/20

The rise of intellectual property,700 b.c. a.d.

2000

Ddalus Spring 2002 27

A tour of the other great civilizationsof the premodern worldChinese,Islamic, Jewish, and Christianreveals a

striking absence of any notion of humanownership of ideas or their expressions.In the Lun-Yii, or Analects, compiled inChina in the fth century b.c. , thephilosopher Confucius is recorded assaying, I transmit rather than create; Ibelieve in and love the Ancients. Themeasure of the greatness of a Chinesescholar was not to be found in innova-tion, but rather in his ability to render orinterpret the wisdom of the ancients,and ultimately God, more fully andfaithfully than his fellows. Wisdomcame from the past, and the task of thelearned was to unearth, preserve, andtransmit it. Confucian thought despisedcommerce and thus also writing for

profit; authors practiced their craft forthe moral improvement of themselvesand others. Reputation, and especiallythe esteem of future generations, was itsown reward, even if it might, incidental-ly, bestow the worldly gifts of patronsupon its bearer. 1

This is not to suggest that there was nocommerce in books in China. In the landthat invented movable type, a book tradeflourished as early as the eleventh centu-ry. Still, Chinese authors had no proper-ty right to their published words. Thecontents of books could not be owned.Not even the particular expressions anauthor might employ could be claimedas his. Chinese characters were thought

to have come from nature, and nohuman being could make a claim uponthem that would exclude their usage by

others. Only the paltry vesselthe paperand ink of a manuscript or a printedbook that bore the ideas and expres-sionscould be bought or sold. 2

Throughout the Islamic lands, too,there was no concept of intellectualproperty for many hundreds of years. Allknowledge was thought to come fromGod. The Koran was the single greatscripture from which all other knowl-edge was derived. A text that embodiedthe word of Allah, it belonged to no one.There were guardians of its true mean-ing, to be surethe great Imams whoformed schools at the sites of the mostimportant temples. But the principlemeans of transmitting Koranic knowl-

edge was oral recitationfrom teacherto student, in an unbroken lineage fromMuhammad himself to his disciples, andfrom these chosen few forward throughthe generations. The word Koran itself means recitation, and oral transmis-sion of the living word was always to bepreferred over a written transcription.The book was merely an instrument, alowly tool, to facilitate faithful memo-rization of the word, and manuscriptswere continuously checked and re-checked against oral memory to ensuretheir accuracy and the authority of theirlineage. The Islamic belief that oralrecitation, rather than written transcrip-tion, best preserved the word of God andkept it pure across the generationsmeant that the technology of printingwas very slow to penetrate into Islamiclands, and it was only widely adoptedthroughout the Middle East with theadvent of the mass newspaper press in

1 William P. Alford, To Steal a Book is an ElegantOffense: Intellectual Property Law and ChineseCivilization(Stanford, Calif.: Stanford Univer-sity Press, 1995), esp. 2529. I would like tothank the National Humanities Center inResearch Triangle Park, N.C., for its support of the research and writing of this essay. I wouldalso like to thank Thomas Laqueur and RobertPost for their comments and criticism.

2 Ibid.


3/20


Carla Hesseonintellectual property

the nineteenth century. 3To be sure, a certain notion of legal

authorship did emerge from Islamicscribal practices. But a concept of intel-lectual property did not. Shar 2 a lawagainst imposture or fraud was usedto prevent the unauthorized appropria-tion of the reputation or authority of agreat teacher through false attribution of written texts. 4 But the teacher did notown the ideas expressed within hisbooks. A thief who stole a book was thusnot subject to the punishment fortheftthe amputation of his hand.Islamic law held that he had not intend-ed to steal the book as paper and ink, butthe ideas in the bookand unlike thepaper and ink, these ideas were not tan-gible property. 5

The Judeo-Christian tradition elabo-

rated a similar view of knowledge.Moses received the law from Yahwehand freely transmitted it to the peoplechosen to hear it. And the New Testa-ment sanctied the idea of knowledge asa gift from God in the passage of theBook of Matthew in which Jesus exhortshis disciples, Freely ye have received,freely give (10:8). Medieval theologiansinterpolated this passage into the canonlaw doctrine Scientia Donum Dei Est,

Unde Vendi Non Potest (Knowledge isa gift from God, consequently it cannotbe sold).

Selling something that belonged toGod constituted the sin of simony. Uni-versity professors, lawyers, judges, andmedical doctors were thus admonishednot to charge fees for their services, al-though they might receive gifts in grati-tude for the wisdom they imparted. 6

Indeed, the language of gift-giving per-meated all forms of knowledge exchangein the premodern period, and nowheremore so than in the dedicatory prefacesto books through which authors soughtpatronage in recompense for the sym-bolic offering of their works. Thus, evenas books were increasingly bought andsold after the advent of print in Europein the fteenth century, and even as

writers began to sell their manuscripts toprinters for a prot, there remained adimension of the book, its spiritual lega-cy, that lay beyond the grasp of marketrelations.7 The author might lay claim tothe manuscript he created, and the print-er to the book he printed, but neithercould claim to possess the contents thatlay within it. The Renaissance elevatedthe poet, the inventor, and the artist tounprecedented social heights, but theirgenius was still understood to bedivinely inspired rather than a mereproduct of their mental skills or worldlylabors.

In the sixteenth century, MartinLuther could thus preach condently inhis Warning to Printers,Freely have Ireceived, freely I have given, and I want

5 The Hedaya92 (1795), cited in Steven D. Jamar, The Protection of Intellectual Propertyunder Islamic Law, Capital University Law Review21 (1992): 1085.

4 Sayed Hassan Amin, Law of Intellectual Proper-ty in the Middle East(Glasgow: Royston, 1991), 3.

3 Johannes Pedersen, The Arabic Book,trans.Geoffrey French (Princeton, N.J.: PrincetonUniversity Press, 1984; original publication:Copenhagen, 1946); William A. Graham,Traditionalism in Islam: An Essay, Journal of Interdisciplinary HistoryXXIII (3) (Winter 1993):

495522; Francis Robinson, Technology andReligious Change: Islam and the Impact of Print, Modern Asian Studies27 (1) (1993):229251.

7 Natalie Z. Davis, Beyond the Market: Booksas Gifts in Sixteenth Century France,Transactions of the Royal Historical Society, ser. 5,

33 (1983): 6988.

6 Gaines Post et al., The Medieval Heritage of a Humanistic Ideal: Scientia Donum Dei Est,Unde Vendi Non Potest, Traditio 11 (1955):195234.


4/20

nothing in return. Well into the eigh-teenth century the idea of the writer asGods handmaiden held sway. Alexander

Pope, in 1711, still conceived of the poetas a reproducer of traditional truthsrather than an inventor of new ones, andGoethe could write fairly of the Germanpoets of the early eighteenth centurythat the production of poetical workswas looked upon as something sacred. Itwas considered almost simony to acceptor to bargain for payment of them.

This theologically informed moralrevulsion to the idea of an individualprot motive in the creation and trans-mission of ideas continued to circulatein the United States well into the nine-teenth century. Francis Wayland, thepresident of Brown University in the1830s, wrote in his college textbookThe

Elements of Moral Sciencethat geniuswas given not for the benet of the pos-sessor, but for the benet of others. 8And an intellectual of no less staturethan George Bancroft added a Hegeliantwist to the Christian tradition, writingin 1855 that:

Every form to which the hands of theartist have ever given birth, spring rstinto being as a conception of his mind,from a natural faculty, which belongs notto the artist exclusively, but to man. . . .Mind becomes universal property; thepoem that is published in England, ndsits response on the shores of Lake Erieand the banks of the Mississippi. 9

T he virtually universal proscription of private ownership of ideas in the pre-

modern world did not, of course, meanthat ideas flowed freely within premod-ern regimes. It fell to Gods agents upon

the earth to determine how much of theknowledge putatively transmitted fromGod was actually divine in origin, aswell as how widely and by whom suchknowledge should be circulated withintheir kingdoms, empires, and cities.Rulers forged alliances with religiousauthorities to control the productionand circulation of ideas and informa-tionboth spiritual and technicalwithin their realms. Throughout theworld, the early modern period wit-nessed the emergence of elaborate sys-tems of prepublication censorship,state-licensed monopolies to control theburgeoning printing and publishingtrades, and the use of royal letters of

patent or privileges to give exclusivemonopolies for the printing and publi-cation of authorized texts. Technicalinventions came to be regulated by asimilar system of exclusive state licens-ing.

In China, as early as the Tang dynasty(a.d. 618907), the legal code prohibit-ed the transcription and distribution of

a wide range of literature in order toprotect the emperors prerogatives andinterests. The rst known ordinanceregulating publication was that of theEmperor Wen-tsing, in 835, forbiddingthe private publication of almanacs. Anextensive regulatory apparatus was cre-ated around the industry of printingunder the Sung dynasty (9601179), andofcial government printing houseswere established in the major cities.Exclusive state privileges were imple-mented for categories of sensitive litera-ture, from astrological charts, prognosti-cations, and almanacs to ofcial pro-mulgations, dynastic histories, and civil-service examination literature. Private

printing houses could register a particu-

The rise of intellectual property,700 b.c. a.d. 2000


9 George Bancroft, Literary and Historical Mis-cellanies(New York: Harper & Brothers, 1855),412, 427.

8 Francis Wayland, The Elements of MoralScience(London: The Religious Tract Society,n.d [1835]), 275.


5/20

lar work with Imperial ofcials andreceive an exclusive privilege to printand sell it.

But privileges were not a form of prop-erty right in the modern sense. Theywere a grace, extended by the pleasure of the authorities, and they were revocableat any time. By the eighteenth century acomprehensive system of prepublicationcensorship and licensing, even of privatewriting, was in place throughoutImperial China. 10

European monarchies, empires, andcity-states created similar legal and insti-tutional structures in response to theintroduction of the new technology of printing in the 1450s. Less than a hun-dred years later, the Reformation rentwestern Christendom. With the spreadof ideological division, regulation of the

printed word intensied rapidly. Rulersgranted commercial monopolies, orprivileges, in exchange for submissionto state censorship and control. The ear-liest European initiative occurred in theRepublic of Venice in 1469, where Johann Speyer was granted an exclusivemonopoly on printing in Venetian terri-tories for a period of ve years.11The

practice of granting exclusive privilegesto print in a particular city, to print aparticular text, or to print a particularcategory of texts (schoolbooks, laws,Latin texts, etc.) spread rapidly fromVenice throughout the Italian states, andfrom there to France and England.

England presents an exemplary case.The rst royal grant of a privilege to thebook trade was the creation of the title

of Kings Printer, which was given toone William Facques in 1504. This posi-tion afforded him the exclusive right to

print royal proclamations, statutes, andother ofcial documents. By 1557 theEnglish crown reorganized the guild of printers and publishers known as theStationers Company and gave them avirtual monopoly over printing andpublishing, both in London and in thekingdom as a whole. In 1559, as part of her attempt to resolve the religious con-troversies that wracked the realm,Elizabeth I issued an injunction againstpublication of any text unless it had beenlicensed by censors appointed by thecrown. The Stationers Company kept aregistry of licensed books and the crowncould, in principle, extend or revoke alicense at will and limit it for whatever

term it deemed appropriate. Rights toprot from a book derived not fromproperty in ideas, but from a privilegeextended by royal grace alone. 12

These licenses were copied into theregistry book of the guild and soon cameto be treated by members of the guild asexclusive rights to print a particularcopy. Though created by royal prerog-

ative, these copy rights were bought,sold, and traded amongst guild mem-bers, as though they were a form of per-petual property. By the 1570s, fourprominent members of the StationersCompany came to have a monopoly con-trol, through letters patents that theyclaimed as their perpetual propertyrights, over the most lucrative books inprint: Christopher Barker, the QueensPrinter, controlled the Bible, the NewTestament, the Book of Common Prayer,and all statutes, proclamations, andother ofcial documents; William Serres



11 Leonardas Vytautas Gerulaitis, Printing and Publishing in Fifteenth-Century Venice(Chicago:American Library Association; London:

Mansell, 1976).

10 Chan Hok-Lam, Control of Publishing inChina: Past and Present(Canberra: AustralianNational University, 1983), 224.

12 John Feather, Publishing, Piracy and Politics: A Historical Study of Copyright in Britain

(London: Mansell, 1994).


6/20

had a monopoly on private prayerbooks, primers, and schoolbooks; Rich-ard Tottel had a monopoly on common

law texts; and John Day laid claim toalphabet books, the Catechism, and thePsalms in meter.

A similar process of consolidation of great publishing empires, founded uponmonopolistic claims rooted in royal pri-vileges, occurred throughout ChristianEurope. By the middle of the seven-teenth century, the Paris Book Publish-ers and Printers Guild, like its brethrenin London, had used its strategic prox-imity to the royal court to achieve amonopoly on the most valued ancientand religious texts as well as the mostlucrative contemporary publications. 13Each of the more than three hundredGerman principalities and cities devel-oped its own particular mechanisms tocensor books, distribute privileges, andregulate guilds.

An author might sell a manuscript to alicensed publisher for a one-time fee,but the real material rewards for thecomposition of a book came from theanticipated royal or aristocratic patron-age that might redound, indirectly, to

the writer from its publication. Authorscould not publish their own books, andunless they obtained a privilege in theirown name, they were denied any protsfrom the sale of their books. These wentto the publishers alone. State-licensedmonopolies on texts, on technical inven-tions, and on the means of reproducingthem successfully wedded the commer-cial interests of publishers, printers, andother technical entrepreneurs to the ide-ological needs of absolutist states tocontrol the knowledge that circulated intheir realms.

Throughout the early modern worldthe development of commercial print-ing and publishing thus rst occurred

through a system of state-licensed mo-nopolies, sanctioned by religious ideolo-gies, that made no mention at all of in-tellectual property rights. The prevailingtheories of knowledge and of politicallegitimacy made such rights inconceiv-able.

I n the 1700s, cultural life in Europeunderwent a dramatic transformation. Ashift from intensive to extensive readingand the rise of a middle-class readingpublic led to an explosion of print com-merce in the eighteenth century. InEngland, it is estimated that annualbook production increased fourfold overthe course of the eighteenth century.

France, too, saw a marked increase inthe literacy rate and a dramatic increasein the demand for modern secular litera-ture.

Everywhere, observers noted thechange. Whereas in 1747 Johann GeorgSulzer lamented that in Berlin the gen-eral public does little reading, a half-century later Immanuel Kant recorded aliterary world transformed: This inces-sant reading has become an almostindispensable and general requisite of life. Kants observations were con-rmed by others: People are readingeven in places where, twenty years ago,no one ever thought about books; notonly the scholar, no, the townsman andcraftsman too exercises his mind withsubjects for contemplation. Increasingliteracy and the emergence of a largemiddle-class readership throughoutEurope in the rst half of the eighteenthcentury put unprecedented strains upona system of publication that had beenpredicated on the notion that there wasa xed amount of divine or ancient



13 Henri-Jean Martin, Livre, pouvoirs et socit Paris au 17me sicle (15981701)(Geneva: Droz,1969).


7/20

knowledge to be known, transmitted,and interpreted. 14

These developments put enormous

pressure on traditional notions of authorship. The increased demand forprinted matter, and especially for mod-ern secular literature (in particular, nov-els, theatrical works, and self-help man-uals of various sorts), tempted anincreasing number of young men (andwomen) to aspire to become writers.And they were writers of a new sortoriented more toward the commercialpotential of their contemporary reader-ship than toward eternal glory. For therst time, in the eighteenth century,writers like Daniel Defoe in England,Denis Diderot in France, and GottholdLessing in Germany began to try to livefrom the prots of their pens rather thanfrom elite patronage. And, not surpris-ingly, they began to make claims for bet-ter remuneration for their products.Older notions that a xed honorariumor fee was an appropriate reward for thecomposition of a manuscript gave way tobolder assertions that the authordeserved a share in the prots earnedfrom his creative labor.

Rather than selling a manuscript to apublisher, authors increasingly soughtsimply to sell the rights to a single edi-tion. With greater frequency, secularauthors began to claim that they werethe creators of their own works ratherthan the mere transmitters of Godseternal truths. As they came to viewthemselves as the originators of theirwork, they also began to claim that their

creations were their own property, assusceptible to legal protection and asinheritable or saleable as any other form

of property. Daniel Defoe wrote in 1710,A Book is the Authors Property, tis theChild of his Inventions, the Brat of hisBrain: if he sells his Property, it thenbecomes the Right of the Purchaser.Authors thus began to assert that theirworks were their own property, trans-missible by contract to others if theauthors desired, but that authors shouldno longer be constrained to sell theirmanuscripts in order to see them pub-lished.

The rise in public demand for printedmatter also led to a dramatic expansionin the practice of literary piracy. Sensingunsatised market demand and acutelyaware of the articial inflation in theprice of some books due to publishersperpetual privileges, less-scrupulousprinters and booksellers throughoutEurope paid diminishing heed to theclaims to exclusive perpetual privilegeson the best-selling and most lucrativeworks. Cheap reprints, produced mostfrequently across national frontiers or insmaller provincial cities, began to flood

urban markets. Publishers of pirate edi-tions successfully represented them-selves as champions of the public inter-est, against the monopolistic membersof the book guilds. Why, they argued,should any particular publisher have anexclusive claim on a work whose authorsor heirs were no longer livingindeed,on many works composed before theinvention of printing? Did not thegreater good of making enlighteningworks widely available at a low costeclipse the selsh interests of individualpublishers?

By the middle of the eighteenth centu-ry, the traditional system of publicationwas everywhere in shambles. First in

England, and then in France and Ger-



14 W. H. Buford, Germany in the EighteenthCentury: The Social Background of the Literary Revival(Cambridge: Cambridge UniversityPress, 1965); Albert Ward, Book Production, Fiction and the German Reading Public, 17401800(Oxford: Oxford University Press, 1974); RogerChartier, The Order of Books(Stanford: Stanford

University Press, 1994).


8/20

many as well, calls for reform of the reg-ulation of the book trade were comingfrom all parties involved. Readers want-

ed cheaper books. Government legisla-tors sought to increase commerce and toencourage a more educated populationwithin their realms. Foreign and provin-cial publishersmost notably in Scot-land, Switzerland, and secondary Frenchcities like Lyonclamored against theperpetual monopolies of the Londonand Paris Book Guilds on the most luc-rative books. Authors wanted theirproperty rights in their compositionsrecognized as absolute and perpetual.And even the privileged guild publish-ers, especially in Hamburg, Leipzig,Frankfurt am Main, London, and Paris,hoped to see their traditional privilegesrecognized as perpetual property rightsthat could be defended against pirates inthe courts.

Satisfying and sorting out these con-flicting claims provoked a host of press-ing new questions: Were ideas in fact agift from God, as traditional authoritieshad claimed, or were they the propertyof those who made them manifest, asauthors now asserted? Was a privilege

a grace, or was it rather the legal rati-cation of an anterior, natural right toproperty? Upon what basis could thegovernments of nations or cities restrictor conrm traditional privileges? Coulda secular foundation be articulated forthe regulation of the publication and cir-culation of ideas?

T he reform of the publishing industryin Europe thus entailed a rethinking of the basis and purpose of knowledge. Avariety of European thinkers enteredinto a momentous debate about the ori-gins and nature of ideas. As a result, aseries of philosophical (or, morespecically, epistemological) problems

were shown to lie at the heart of what at

rst glance seemed merely to be ques-tions of commercial policy.

One influential viewthat authors

have a natural property right in theirideaswas articulated rst in Englandand associated with two key texts: JohnLockes Second Treatise(1690) andEdward Youngs Conjectures on OriginalComposition(1759).

In his Treatise,Locke famously wrotethat every Man has a Propertyin hisown Person. This no Body has any rightto but himself. The Labour of his Body,and the Work of his Hands, we may say,are properly his. Three generationslater, the poet Edward Young, writingwith the assistance of the novelist Sam-uel Richardson, asserted that the authorcontributed more than simply his laborto a bookhe imprinted its contentswith his original personality. Accordingto Young, the labor of an author wasthus of a higher order than the labor of an inventor, never mind the labor of afarmer, for the author not only workedupon nature, but produced somethingfrom himself, which bore the indeliblestamp of a unique personality. Whilelimits might be imposed upon patents

for mechanical inventions, products of the mindbearing the personhood of their authorought to belong perpetu-ally to their creator. Intellectual proper-ty, an invention of the eighteenth centu-ry, thus burst into the world claiming tobe real property in its purest form.

Youngs reflections, like those of JohnLocke before him, constituted a dramat-ic secularization of the theory of knowl-edge. If all knowledge was derived fromthe senses working upon nature, asLocke had argued in the Essay Concerning Human Understanding (1689), there wasno role left for divine revelation. In thesecular epistemology of Locke, inspira-tion is internalized and redened as cog-

nition. Young in turn applied Lockes




9/20

epistemology to argue that cognitionemanates from the workings of a uniquemind. The individual personality sup-

planted God as the divine font of knowl-edge.The new British accounts of knowl-

edge began circulating almost immedi-ately on the Continent. Youngs Conjec-tures on Original Compositionwas rapidlytranslated into German and wentthrough two editions there in the twoyears after it rst appeared in English.Meanwhile, in France, both Locke andYoung were widely influential. In 1726,for example, the French jurist DHeri-court seized upon Lockes critical pas-sage to argue in court on behalf of per-petual book privileges for authors, as-serting that products of the mind arethe fruits of ones own labor, which oneshould have the freedom to dispose of atones will and forever. One could ownones ideas just as one owned land thatone had cleared with ones own labor.DHericourt concluded that a royal bookprivilege was not merely a grace accord-ed by the king, to be granted or revokedat his will, but rather a legal conrma-tion of an anterior natural property

right, secured by the authors labor. 15The author could sell or retain thoserights as he or she wished. Once sold,they belonged to the publisher in perpe-tuity.

The same argument was taken upagain by the encyclopedist DenisDiderot in 1763, after he was commis-sioned by the Paris Book Guild to write a Letter on the Book Trade.In Diderotswords, we can hear the resonance of both Locke and Young:

What form of wealth couldbelong to aman, if not the work of the mind . . . if not

his own thoughts . . . the most preciouspart of himself, that will never perish, thatwill immortalize him? What comparison

could there be between a man, the verysubstance of a man, his soul, and a eld, atree, a vine, that nature has offered in thebeginning equally to all, and which theindividual has only appropriated thoughcultivating it? 16

Like Young, Diderot argued that prod-ucts of the mind are more uniquely theproperty of their creator than landacquired through its cultivation. Literaryproperty should, therefore, be even lesssusceptible to social regulation thanland.

It was Gotthold Lessing, the greatestwriter of the German Enlightenment,who most forcefully developed thenotion of the authors unique personali-

ty as a source of property rights in ideas.In a 1772 essay, Live and Let Live,Lessingproposed a reorganization of the Ger-man book trade that attacked the foun-dations of the old system. He challengeddirectly the traditional ban on protsreceived from writing:

What? The writer is to be blamed for try-

ing to make the offspring of his imagina-tion as protable as he can? Just becausehe works with his noblest faculties he isntsupposed to enjoy the satisfaction that theroughest handyman is able to procure?. . .Freely hast thou received, freely thou mustgive! Thus thought the noble Luther. . . .Luther, I answer, is an exception in manythings.

From Lessing forward, German writersclamored insistently for recognition of their claims upon their writings as aform of unique, perpetual, and invio-lable property.



15 Raymond Birn, The Prot in Ideas: Privilges en librairiein Eighteenth-Century

France, Eighteenth-Century Studies4 (2) (1971):131168.

16 Denis Diderot, Oeuvres Compltes, 15 Vols.(Paris: 1970), 5:331 (my translation).


10/20

A generation later, Johann GottliebFichte, a philosopher and disciple of Kant, probed the complexities of the

problem even more deeply. Fichte poseda difcult question: if creations of themind were indeed property, whatexactly was immaterial property?Clearly it did not simply consist of aphysical manuscript, since the author orthe publisher could no longer claim suchan object to be unique once it had beenreproduced through printing. Literaryproperty seemed to lack the singularphysical form that characterized otherforms of real property. But this was notthe only difculty with the idea of aproperty in ideas. After all, a great manypeople seemed able to share the sameideas, and it seemed intuitively just thatas many people as possible should bepermitted to express freely the sameideas independent of one another.

Fichtes solution to his puzzlementproved widely influential. For an idea tobe regarded as a piece of real property,Fichte argued, it had to be assignedsome distinguishing characteristic thatallowed one person, and no other, toclaim it as his own. That quality, he sug-

gested in 1791 in his essay Proof of the Ille- gality of Reprinting: A Rationale and a Par-able, lay not in the ideas per se, but ra-ther in the unique form in which anauthor chose to express these ideas.Once published, the ideas in a bookbelonged to allbut the singular form of their expression remained the sole prop-erty of the author. Even ideas that hadbeen in the air could become a pieceof property through the unique way inwhich an author expressed them.Fichtes distinctionsbetween thematerial and the immaterial book, andbetween the content and form of ideaswere to be critical in establishing a newtheory of copyright based on the natural

right to property in the unique expres-

sions of ideas, rather than in the ideasthemselves.17

Not everyone shared the enthusiasmof Fichte and Diderot and Edward

Young for the nascent concept of intel-lectual property. Some viewed the wide-spread movement toward securing anauthors property rights as nothing morethan a new metaphysics and a thinlyveiled campaign to protect the monopo-lies of book publishers. In the 1770s, azealous German mercantilist went so faras to defend the piracy practiced bysome German book publishers:

The book is not an ideal object. . . . It is afabrication made of paper upon whichthought symbols are printed. It does notcontain thoughts; these must arise in themind of the comprehending reader. It is a

commodity produced for hard cash. Everygovernment has a duty to restrict, wherepossible, the outflow of its wealth, henceto encourage domestic reproduction of foreign art objects.

In 1776, the French mathematician andphilosopher Condorcet expressed evendeeper reservations, for philosophical

rather than commercial reasons. Writ-ing in direct response to Diderots Letter on the Book Trade,Condorcet disputedhis Lockean line of argument: Therecan be no relationship between propertyin ideas and [property] in a eld, whichcan serve only one man. [Literary prop-erty] is not a property derived from thenatural order and defended by socialforce; it is a property founded in societyitself. It is not a true right; it is a privi-lege.

Ideas, Condorcet asserted, are not thecreation of a single mind. Nor are they a



17 Martha Woodmansee, The Genius and theCopyright: Economic and Legal Conditions of the Emergence of the Author, Eighteenth-

Century Studies17 (1984): 425448.


11/20

gift from God to be regulated by royalauthority. Ideas inhere in nature and areequally and simultaneously accessible to

all. Ideas are intrinsically social: they arenot produced by individuals alone; theyare the fruit of a collective process of experience.

Moreover, Condorcet could see nosocial value in granting individual claimsupon ideas. Since true knowledge wasobjective, particular claims on ideascould consecrate nothing more thanmere style, what Fichte had calledform. Condorcet, as a man of sciencerather than literature, had little use forstyle. Style merely distorted naturestruths, and to encourage the individua-tion of ideas was simply to encouragepleasant ctions and personal gainrather than the pursuit of knowledgeand the public good: It is uniquely forexpressions, for phrases, that privilegesexist. It is not for the substance of things. . . . Privileges of this sort, like allothers, are inconveniences that diminishactivity by concentrating it in a smallnumber of hands. . . . They are neithernecessary nor useful, and . . . they areunjust.

While Diderot, Lessing, and Fichtecelebrated romantic originality, Con-dorcet sought to ground public literaryculture in scientic rationalism. Themodel of publication based uponauthors property rights could, accord-ing to Condorcet, be replaced with themodel of periodical subscriptions, likethe Journal des Savantes.People could sub-scribe to useful publications and theauthors could be remunerated assalaried employees or freelance writersfor a nonprot organization. Moreimportant than his specic policy sug-gestion was Condorcets claim that if ideas, as social creations, were to be rec-ognized as a form of property, it must

not be on the basis of an individual natu-

ral right but rather on the basis of thesocial utility of a property-based regime.

Condorcet thus erected a second,

alternative pillar for the modern notionof intellectual property: social utilitari-anism.

T he tension within Enlightenmentepistemology left those policymakersconcerned with the book trade on thehorns of a philosophical dilemma. Didknowledge inhere in the worldor inthe mind? To what extent were ideasdiscoveredand to what extent werethey invented?

Condorcet argued that knowledge wasobjective and thus fundamentally socialin character, belonging to all. Diderot,along with Young, Lessing, and Fichte,viewed ideas as subjective, originating inthe individual mind and thus constitut-ing the most inviolable form of privateproperty.

Two strains of legal interpretationdeveloped from these competing philo-sophical doctrines. Those legal thinkerswho sided with the objectivist positionof Condorcet elaborated the utilitariandoctrine that there was no natural prop-

erty in ideas, and that granting exclusivelegal rights to individuals for uniqueforms of their expression could only be justied because such an arrangementwas the best legal mechanism forencouraging the production and trans-mission of new ideas, a manifest publicgood. Conversely, those who sided withLocke, Young, Diderot, Fichte, and thesubjectivist camp argued that there wasa natural right to perpetual property inideas and that legal recognition of thatright was simply the conrmation instatute of a universal natural right. Theutilitarian position thus understood thepublic interest as the highest aim of thelaw, while natural-rights proponents

argued that the sanctity of the individual




12/20

creator should be the guiding principleof any legislator.

Over the course of the eighteenth cen-

tury, every European country witnesseda series of legal battles over which of these principles would prevail. Vestedinterests on both sides of the debate viedto capture the legislative advantage. TheEnglish were the rst to take up thequestion after the lapsing of the Licens-ing Act in 1695, which had regulated thebook trade and censorship. Intending toend prepublication censorship by sup-pressing the obligation to submit toprior licensing before publication,Parliament inadvertently also called thewhole system of privileges into ques-tion. If a work were not registered priorto publication, no mechanism existed toprotect literary privileges against pirateeditions. The Stationers Companyclamored for recognition of their tradi-tional privileges as perpetual propertyrights, while pirate publishers insistedthat the lapsing of the act meant that allpreviously published works were nowfree for all to reprint.

Parliament nally lled the legal vacu-um in 1710, when the so-called Statute of

Anne denitively separated the questionof censorship from that of literary prop-erty. The statute ruled that authors, andthose who had purchased a manuscriptfrom an author, would have an exclusiveright to publish the work for fourteenyears (the term that had previously beenestablished for patents on mechanicalinventions). This right could be renewedfor an additional fourteen years. Butafter this period (of fourteen or twenty-eight years), the work became part of the public domain, and anyone was freeto publish it. As a result, all of the mono-polies held by the Stationers Companyon classical texts were abolished. Ineffect, the Statute of Anneits full title,

appropriately enough, was A Bill for

the Encouragement of Learning and forSecuring the Property of Copies of Books to the Rightful Owners There-

ofrepresented an uneasy compromisebetween the position of the StationersCompany and the advocates of authorsnatural rights on one side and the posi-tion of the pirate publishers and advo-cates of the public interest on theother.

Needless to say, neither side wasentirely satised with this compromise.

The contradictory philosophicalassumptions it codied left plenty of room for subsequent court challenges. Aseries of cases that pitted London pub-lishers against foreign rivals Tonsonv.Collinsin 1760, and Millar v. Taylor in1769led briefly to a recognition of per-petual property rights in the uniqueexpression of an idea. But Donaldsonv. Becket in 1774 reversed this decision, anddenitively established as British law thecompromise concept of a limited prop-erty right in the unique expression of an idea.

The Donaldsonv. Becket decision wascrucial in two respects. First, despite thedissenting voice of eighteenth-century

Englands most distinguished jurist,William Blackstone, it established theencouragement of learning as thehighest aim of the laws regulatingbooks. Second, even though copyrightwas acknowledged to be a natural rightrooted in common law, the Donaldsonv. Becket decision held that copyright inpractice hinged on government legisla-tion. In England, the utilitarian doctrineof a higher public good trumped the ideaof intellectual property rooted in naturalright. 18



18 Mark Rose, Authors and Owners. The Invention of Copyright(Cambridge, Mass.:Harvard University Press, 1993).


13/20

I n early America, both natural rightsand utilitarian doctrines were debatedwithin the British colonies, and colonies

differed as to which theory formed thebasis of their laws.19The Statute of Anne, as ratied by the Donaldsonv. Becket decision, became the basis for therelevant clause in the Federal Constitu-tion of 1787: Congress shall have thepower . . . to promote the progress of Sci-ence and useful Arts, by securing for lim-ited Times to Authors and Inventors theexclusive Right to their respective Writ-ings and Discoveries. This article inturn became the basis of the UnitedStates Copyright Statute of May 31, 1790.The author or inventor was acknowl-edged as an individual with specialclaims upon his own ideasbut the pub-lic good dictated that those claims belimited. In America, as in England, therethus remained a persistent tension be-tween a natural-rights justication forperpetual copyright claims, rooted incommon law, and statutory limits thatpreempted, but did not abolish, thoseanterior rights.

A similar tension in French legalthinking provoked a parallel set of court

battles. At the beginning of the eigh-teenth century, the French crown, hop-ing to strike a compromise betweenParisian publishers and their provincialcompetitors, had declared that privilegeswere not a form of perpetual property, asthe Parisian publishers claimed, butrather a grace founded in justice; as aresult, privileges could be limited, re-newed, or even revoked, at the kingswill. This ruling permitted the crown

ofcers administering the book tradeconsiderable latitude in redistributingprivileges. The ruling did little, however,

to undermine the monopolies of theParis Book Guild, or to forestall a grow-ing flood of books illegally produced byprovincial and foreign printers.

In 1777, the French crown, confrontedwith mounting criticism, was forced torevise the system of privileges. Whilestill refusing to recognize the concept of literary property, the king for the rsttime granted authors their own categoryof privileges ( privilges dauteur ). Thesenew privileges were to be perpetual andinheritable, like any other form of per-sonal property. However, once an authorsold a manuscript to a publisher, thepublishers claim would be limited to tenyears, with the possibility of a single re-newal. This meant that the publishersprivileges were to be restricted at thesame time as unlimited privileges wereextended to authors. The Paris BookGuild, predictably enraged, refused toacknowledge the new law and essentiallywent on strike against crown ofcialsuntil the Revolution in 1789.

The Revolution changed everything.

Freedom of the press was declared andliterary privileges abrogated. The royaladministration of the book trade wasabolished, and so were the Parisian bookguilds. Authors were now widely cele-brated not as private creators and pos-sessive individuals, but rather as civicheroes, servants of public enlighten-ment. 20

Hoping to establish the French booktrade on a new, secular footing, the AbbSieys in 1791 proposed passing a Lawon the Freedom of the Press that he hadwritten with the help of Condorcet,



19 See Lyman Ray Patterson, Copyright in Historical Perspective(Nashville: VanderbiltUniversity Press, 1968), esp. 180202; and JaneC. Ginzburg, A Tale of Two Copyrights:Literary Property in Revolutionary France andAmerica, Tulane Law Review64 (5) (May 1990):

9911031.

20 Carla Hesse, Publishing and Cultural Politicsin Revolutionary Paris, 17891810(Berkeley:

University of California Press, 1991).


14/20

among others. Like the English Statuteof Anne, the Sieys law recognizedauthors texts as a form of property,

originating with their creators, and sus-ceptible to legal protection; yet at thesame time, the Sieys law reflectedCondorcets concern for the publicinterest by limiting exclusive claimsupon literary property to the lifetime of the author, plus ten years.

In the heated climate of revolutionaryParis, the law proposed by Sieys

satised no one. Many journalists reject-ed any law that threatened to limit thefree circulation of texts. Revolutionarypamphleteers denounced it as a resur-rection of discredited feudal privileges.Veteran book publishers demanded arestoration of their former rights andprivileges.

It was only in 1793, after the Paris BookGuild had ceased functioning as a lobby-ing group, and after the seizure of powerby the Jacobins, that the National Con-vention was able to pass a slightly re-vised version of the Sieys law, nowtouted as a Declaration of the Rights of Genius. The law of July 19, 1793, be-came the basis for all subsequent literary

property law in France. It ratied thecompromise proposed by Sieys in 1791and, like the British Donaldsonv. Becket decision of 1774, enshrined the conceptof a limited property right as the bestmeans to strike a balance between remu-nerating authors and protecting the pub-lic interest in the advancement of learn-ing.

In these years, a great many Germanwriters and intellectuals closely fol-lowed the debate over intellectual prop-erty in France. Since there was no uni-ed German state until 1870, there wasno centralized authority to regulate thebook trade. Still, a number of individualGerman states did pass laws similar to

the revised Sieys law. In 1794, for exam-

ple, the largest German state, Prussia,revised its general legal code to reafrmthe privileges of publishers, but also to

extend similar privileges to authors.During the Napoleonic period, whenthe French civil code was imposed onmany German states, even more princi-palities followed the French model:Baden was the rst German state togrant real copyright to authors (1806,1810), and the phrase Rechten des Urhebers(authors rights) was rst used in Bavar-

ia in 1813. Beginning with the Congressof Vienna in 1815, authors rights wereincreasingly and more uniformly recog-nized in German law. It was not, howev-er, until 1870 that Imperial Germanysuccessfully adopted a uniform copy-right law similar to those of the Frenchand the English.21

I t is no coincidence that the Englishphrase intellectual property shouldrst appear in 1845, according to theOxford English Dictionary.By then, abroad consensus had emerged thatcopyright should strike a balancebetween the interests of the intellectualproperty owner and the public good:

authors and inventors could prot fromtheir works and their ideas, but only fora limited span of time.

But this is by no means the end of thestory. Because the modern laws regulat-ing intellectual property rest on a largelyunexamined set of contradictory philo-sophical assumptions, these laws havebeen uniquely vulnerable to challengenot least by the continuing rise of newmethods of distributing ideas and infor-mation across national boundaries. As aresult, the philosophical tensions at theheart of modern concepts of intellectual



21 Reinhard Wittmann, Geschichte des deutschen Buchhandels: ein berblick(Munich: Verlag C.H. Beck, 1991).


15/20

property have been played out on anincreasingly global scale, reworking thebalance between private rights and thepublic interest, often in dramatic newways.

The industrial revolution created aninternational market for literary worksand mechanical inventionsand so cre-ated a new need for a regime of interna-tional intellectual property rights. By themiddle of the eighteenth century, Frenchcompetition with Belgian and Swiss pub-

lishers had led to the rst major interna-tional copyright treaties. In 1858, a Con-gress of Authors and Artists convened byVictor Hugo held its rst meeting inBrussels in an effort to formulate a trulyinternational basis for the universal pro-tection of authors rights. Unable tosecure agreement on such a universalregime, the congress instead enunciateda doctrine of national treatment, ask-ing each nation to extend the legal pro-tections it offered to domestic writersand inventors to foreign writers andinventors as well.

A generation later, in 1886, a series of conferences held in Berne led to thesigning by ten European nations of the

rst international copyright treaty.22

Despite the doctrine of national treat-ment, the process of internationalizingcopyright protection tended to strength-en universalist claims for protection of inviolable natural rights against statuto-ry limits imposed by particular nationson utilitarian grounds. This progressiveshift in the legal spectrum toward theenforcement of natural rights has led toa steady strengthening of private intel-lectual property right claims over thedoctrine of the public interest. Thus,over the course of the nineteenth and

twentieth centuries the private claims of holders of authorial rights or copyrightshave been repeatedly extended from theinitially modest ten to fourteen yearsafter the authors death to the currentterms of fty and sometimes seventy-ve years after the authors death inmost countries with liberal copyrightregimes.

Positions on copyright were clearlynot the product of disinterested jurispru-dential reflection. By the nineteenth cen-

tury it became clear that nations thatwere net exporters of intellectual prop-erty, such as France, England, and Ger-many, increasingly favored the natural-rights doctrine as a universal moral andeconomic right enabling authors to exer-cise control over their creations andinventions and to receive remuneration.Conversely, developing nations thatwere net importers of literary and scien-tic creations, such as the United Statesand Russia, refused to sign on to interna-tional agreements and insisted on theutilitarian view of copyright claims asthe statutory creations of particularnational legal regimes. By refusing tosign international copyright treaties, the

developing nations of the nineteenthcentury were able to simply appropriatethe ideas, literary creations, and scien-tic inventions of the major economicpowers freely.

The United States offers an exemplarycase. As it evolved from being a netimporter of intellectual property to a netexporter, its legal doctrines for regulat-ing intellectual property have tended toshift from the objectivist-utilitarian sideof the legal balance toward the univer-salist-natural-rights side. In early-nine-teenth-century America the rst greatpublishing houses in New York, Phila-delphia, and Boston built fantastic for-tunes on unauthorized, and unremuner-ated, publication of British writers. They



22 Peter Burger, The Berne Convention: ItsHistory and Its Key Role in the Future, Journalof Law and Technology3 (1) (Winter 1988).


16/20

justied their practices on the utilitariangrounds that copyright was statutoryand that it was in the American publicinterest to have great works available forthe cheapest possible prices. 23 Harpers Monthly,for example, was created exclu-sively from unauthorized reproductionsof copy from British magazines. In 1843 acopy of Charles Dickenss A ChristmasCarolsold for six cents in the UnitedStates, while in England it cost the equi-valent of two dollars and fty cents.24

The Reverend Isaac K. Funk, founder of Funk and Wagnalls, made his initial for-tune by pirating Ernst Renans The Lifeof Jesus.Against these large publishingand printing businesses a movement forAmerican recognition of internationalcopyright claims emerged by the 1830s,led largely by American writers and fel-low advocates of a nativist Americanculture who felt that without interna-tional copyright indigenous writerscould not compete with their Britishcounterparts in the American literarymarket. They drew increasingly uponthe rhetoric of authors universal naturalrights, and they appealed on patrioticgrounds to Congress to act to encourage

American letters by preventing cheapreprints of unauthorized British texts.Not surprisingly, despite repeated

petitions to Congress from distin-guished writers in both America andEngland, this movement was repeatedlythwarted by the more intensive lobbyingof the American publishing industry inthe name of the public interest. Thus theSherman and Johnson publishing houseof Philadelphia sent the following pro-

test to the Senate and the House in 1842:

All the riches of English literature areours. English authorship comes to us free

as the vital air, untaxed, unhindered, evenby the necessity of translation, into thecountry; and the question is, shall we taxit, and thus impose a barrier to the circu-lation of intellectual and moral light?Shall we build up a dam to obstruct theflow of the rivers of knowledge? 25

Knowledge was there for the taking if

the grab could be justied by the publicgood. A radical version of Condorcetthrived in mid-nineteenth-centuryAmerica. By the 1870s the Americandebate became sharply focused. On oneside, trade protectionists, printersunions, and publishing houses whosefortunes were rooted in pirating Britishliterature argued against any interna-tional agreement. On the other side,advocates of indigenous authors alliedthemselves with partisans of free tradeand international copyright, claiminguniversal natural rights of authorship.

A critical shift in the political balanceoccurred in the 1880s as the olderAmerican publishing houses on the east

coast began to see their prots erodingin the face of a new generation of masspenny-press publishers, expanding espe-cially in the midwestern states, whoundercut their costs and reached yetwider markets. In the face of this chal-lenge the older houses reshaped theirbusiness strategies and their argumentsabout intellectual property. They nowrealized that they would be better posi-tioned than the new generation of pub-lishers to sign exclusive copyright agree-ments with foreign authors that wouldbe enforceable within the United States.The signing of the Berne Convention in



24 Sidney Moss, Charles Dickens Quarrel with

America(Troy, N.Y.: Whitson Pub. Co., 1984).

23 Aubert J. Clark, The Movement for International Copyright in Nineteenth-Century America(Washington, D.C.: The CatholicUniversity of America Press, 1960).

25 Cited in Clark, The Movement for InternationalCopyright,77.


17/20

Europe in 1886 added further momen-tum to a shift in the views of major pub-lishing houses like Harpers and Scrib-ner, who recognized the advantage of themovement for American adherence tosome form of international agreement,at least with England. American theolo-gians, including the Reverend IsaacFunk, now denounced the national sinof literary piracy (which had allowedhim to make his fortune on his pirated Life of Jesus) as a violation of the seventh

commandment. 26 And their voicesresounded on the floor of Congress.Although Congress refused to sign theBerne Convention on the grounds thatAmerican law did not recognize authorsnatural rights, in 1891 an internationalagreement with England for reciprocalcopyright protection was nally signedby Congress.

By the opening of the twentieth centu-ry, as America came to be a full-fledgedcompetitor in international commercein intellectual property and a net export-er of intellectual property, Americanlegal doctrine began to move toward anincreasing recognition of unique author-ial rights rooted in the sanctity of the

personality of the creator, rather thansimply in commercial privileges extend-ed for utilitarian ends. The personalitytheory of intellectual property had beenpresent in the Anglo-American traditionsince the eighteenth century, but the sin-gle most important source for this shiftin principle was the Supreme Court deci-sion written by Justice Holmes in Blei- steinv. Donaldson(188u.s. 239) in 1903.27The case involved the commercial repro-

duction of images used in a circus poster.The argument of the defendant, Donald-son, was that the images were of such ageneric nature as to contain insufcientoriginality to qualify as artistic creationsusceptible to copyright protection. TheHolmes court demurred, arguing thatthe courts were not to be put in the roleof literary or artistic critics, that is, judges of the artistic merit of a work,and that moreover, any created image isthe personal reaction of an individual

upon nature. Personality always con-tains something unique. It expresses itssingularity even in handwriting, and avery modest grade of art has in it some-thing irreducible, which is one mansalone.

Through the Holmes decision the rhet-oric of authorial originality and naturalrightsthe Defoe, Diderot, and Lessingside of the Enlightenment debatemadeits way into American jurisprudence atthe very moment when America beganto supplant Europe as the hegemonicglobal economic power. The course of twentieth-century American copyrightlawfrom Bleisteinv. DonaldsonthroughUnited States adherence to the Berne

Convention in 1988 to the Digital Mil-lennium Copyright Act of 1995hasbeen a story of the steady strengtheningof the proprietary rights of intellectualproperty owners at the expense of publicaccess and interest. 28 It is a history of the tipping of the balance in the found-ing principles of eighteenth-centuryintellectual property law away from theaim of public utility through encour-agement of learning toward the en-hancement of private commercial gain.



26 Henry Van Dyke, The National Sin of Literary Piracy(New York: Charles Scribners Sons,1888).

27 Robert C. Post, Reading Warren andBrandeis: Privacy, Property, and Appropri-ation, Case Western Reserve Law Review41 (3)

(1991): 658662.

28 James Boyle, Shamans, Software, and Spleens: Law and the Construction of the InformationSociety(Cambridge, Mass.: Harvard UniversityPress, 1996); and Jessica Litman, DigitalCopyright(Amherst, N.Y.: Prometheus Books,

2001).


18/20


T he tension between utilitarian inter-ests and authors natural rights has alsoplayed itself out in modernizing soci-

eties beyond the United States andWestern Europe. Developing nations,which are net importers of culturalgoods and technology, nd themselvesin the position of the United States inthe nineteenth century. And the tenden-cy has been for these nations to hold fastto the utilitarian claim that the nationalpublic interest should come before

recognition of the natural right to prop-erty in international copyright, patent,or trademark claims asserted by export-ing nations.

In Russia and China the eighteenth-century battles were fought in much thesame terms, although with differentactors. Theocratic authority gave way tosecular power within a Marxian frame-work, which drew upon the Lockeannotion that new ideas and inventionswere the result of the mind workingupon natural resources. This led to alabor theory of intellectual productionthat was assimilable to the Marxistnotion of the labor theory of value. ButMarx gave it a twist la Condorcet. He

argued that labor was inherently socialrather than individual in nature, even inthe case of mental labor, when the mindworked alone with its own resources. Inhis early manuscripts, Marx suggestedthat this was because the creating indi-vidual was the product of social experi-encehe owed his livelihood and educa-tion to the society that produced him.Because he worked with natural resourc-es that should belong to all, his mentallabors were social, and hence the prod-ucts of them should belong to society asa whole. The people, in the form of therevolutionary peoples state, were thusto lay claim to the right to exploit thecreations of individual authors and

inventors. 29 The early Bolsheviks thusfamously nationalized a list of greatRussian writers following the 1917 revo-

lution. And Chinese authorities duringthe Cultural Revolution promulgated thefollowing popular saying: Is it neces-sary for a steel worker to put his nameon a steel ingot that he produces in thecourse of his duty? If not, why should amember of the intelligentsia enjoy theprivilege of putting his name on what heproduces?

The story of intellectual property inRussia and China, despite brief experi-ments with liberal property-basedregimes in the early twentieth century,has essentially been a story of the devo-lution of a monopoly on ideas andinventions from theocratic regimes tocommunist states. In both the Soviet

and Chinese communist regimes, how-ever, there was an increasing recogni-tion of the necessity to create nonprop-erty-based incentives for individualauthors and inventors. A system of state-issued awards, prizes, and privi-leges became the socialist mechanismfor encouraging creation and invention.The Soviet Union created a system of

Authors Certicates that recognizedindividual contributions to the publicgood, and the Chinese, after the CulturalRevolution, followed suit. While thestate retained the power to exploit, ornot exploit, the contributions of theseindividuals, the certicates made theirbearers eligible for material rewards andfor remuneration from the prots gener-ated by their creations. In socialist coun-


29 John N. Hazard, Communists and Their Law(Chicago: University of Chicago Press, 1969),243268; Serge Levitsky, Introduction to SovietCopyright Law(Leyden: A. W. Sythoff, 1964);Michael A. Newcity, Copyright Law in the SovietUnion(New York: Praeger Publishers, 1978);Alford, To Steal a Book is an Elegant Offense.


19/20

tries, the logic of utilitarianismmar-ried to a state monopoly on the distribu-tion of knowledgeled to a system of public patronage of authors and inven-tors rather than a recognition of theirindividual property rights.

Islamic states have followed yet anoth-er path. These states have remainedtheocracies, and so shar 2 a, or Koraniclaw, remains the highest authority, evenfor secular potentates. Koranic propertylaw traditionally applied only to tangible

things that could be apprehended by theve senses. It is notoriously silent on thequestion of ownership of ideas. 30 InIslamic jurisprudence, however, wherethe Koran is silent, governments are per-mitted to make a new law, as long as itdoes not explicitly conflict with Koranicinjunctions. As a consequence, in thetwentieth century a body of intellectualproperty law has emerged in mostIslamic states, based on Western legalcodes.

These Western-style copyright lawshave recently come under new scrutinyby Muslim jurists, and a lively debatehas emerged between legal scholars as towhether any concept of ownership of

ideas is compatible with shar 2

a. Somescholars argue that the concept of intel-lectual property is inherently incom-patible with the Koranic injunctionagainst the ownership of anything intan-gible, suggesting that it will only lead toprivate monopolies of some individualsover knowledge. Others make the dis-tinction between ideas and their tangibleexpression and defend the modern con-cept of copyright. 31

Because these states remain essentiallytheocratic in nature, however, the lawhas preserved the states right to censorall publications as it deems necessary,and to assert the broad discretionarypower of the government to set limits onthe terms and duration of an authors orinventors rights in relation to his cre-ations. In Iran, for example, the durationof private copyright claims is set at thirtyyears after the authors death. The statethen retains an exclusive right on the

creation for another thirty years before itis made accessible to the public at large.Moreover, Islamic states in general donot extend copyright protection to non-nationals, although some bilateral agree-ments have been signed between Arabnations. In the international arena,Islamic law has thus tended toward theutilitarian position that the states inter-est is higher than any notion of the uni-versal natural rights of authors or inven-tors.

In the closing decades of the twentiethcentury the outlines of a serious conflictover the nature and scope of intellectualproperty have emerged in the interna-tional arena. In general, developing na-

tionsincluding not only China, Tai-wan, Russia, and the Middle Easternstates, but African and South Americannations as wellhave employed the util-itarian argument, derived from Con-dorcet, that intellectual property isinherently social in nature and that thestate has the right to limit the individualclaims of its citizens as well as others inthe name of the public good. This argu-ment is used, as it was in nineteenth-century America, to justify thesenations refusal to recognize copyrightand patent claims by nonnationals.



30 Steven D. Jamar, The Protection of Intel-lectual Property under Islamic Law, CapitalUniversity Law Review21 (1992): 10791106;Sayed Hassan Amin, Law of Intellectual Propertyin the Middle East(Glasgow: Royston, 1991).

31 See Simon Buckingham, In Search of Copy-

right in the Kingdom, Middle East Executive

Reports,8 May 1988, and Mufti Taqi Usmani,Copyright According to Shariah, Albalagh,an Islamic E-Journal(23 April 2001).


20/20


Conversely, the United States andWestern Europe have witnessed a shiftin their jurisprudential traditions awayfrom the utilitarian side of the eigh-teenth-century intellectual property bal-ance and toward an unprecedentedstrengthening of the doctrine of the uni-versal natural rights of authors andinventors to the exclusive commercialexploitation of their creations andinventions. And since the 1970s theUnited States and Western European

nations have been increasingly aggres-sive in using trade sanctions and inter-national trade agreements to coercedeveloping nations to recognize precise-ly this view of intellectual propertyrights.32

The consequences of this evolution inWestern, and especially American, intel-lectual property law are troubling forseveral reasons. Most immediately, inthe global arena questions of patents onaids drugs, stem cells, and ethnobotan-ical practices are morally urgent. Thedominance of the natural-rights viewleads to immediate suffering and to theappropriation of local knowledge forinternational gain. The loss of a legalbalance in the global arena risks giving

monopolistic power to exporter nations.Equally important, it puts at risk the lib-eral political balance between individualgain and the public good that was thefoundational aim of the intellectualproperty laws within Western democrat-ic polities themselves. The cultural andscientic health of Western democraciesin the future will depend on a publicrenewal of the animating mission of theEnlightenment concept of intellectualproperty: to dismantle commercialmonopolies on the circulation of thought and to spread knowledge freelyamong our citizenry.


32 Alford, To Steal a Book is an Elegant Offense;Zachary Aoki, Will the Soviet Union and thePeoples Republic of China Follow the UnitedStates Adherence to the Berne Convention? Boston College International and Comparative Law Review13 (Winter: 1990): 207235; andNatasha Roit, Soviet and Chinese Copyright:Ideology Gives Way to Economic Necessity, Loyola Entertainment Law Journal6 (1986):5371.

Documents

4. Hesse_2002_The Rise of Intellectual Property, 700 B.C._a.D. 2000