Faith-Based Intellectual Property

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From IP Kat:

I have a running list of disciplines and the things they have ruined for me. Biology ruined zoos, law ruined logic, economics ruined hope etc.  Recently, I’ve been making a foray into sociology, which so far seems to be ruining things in social contexts. Which is basically everything.

The problem, or perhaps solution, with sociology is that it’s annoyingly right. “Sociology is the scientific study of society, patterns of social relationships, social interaction, and culture of everyday life.” It can explain what the forces are behind legal systems that are theoretically racially blind but in practice are biased. It asks questions as to whether ‘high culture’ really exists, or is it simply a self-re-enforcing class marker. It looks at the assumptions and social contexts behind it. And then does it to itself. As I said, very annoying.

Sociology is increasingly turning its sharp eye to law. Full disclosure, my dabbling in sociology can be seen in a new book, written together with two sociologists, on the how IP/IPR shape the creative sociological views of IP, and particularly those of patenting, are scarce. Existing research examines the myths surrounding IP and its strong symbolic role. Economic and legal approaches to IP tend to ignore this symbolic factor.

Sociology places the development of IP as part and parcel of the development of capitalism. Capitalism requires private owners; owners must own things. As we increasingly turn our attention to the idea of the ‘knowledge economy’, IP has become a key part of modern capitalism. As authors Mathew David and Deborah Halbert describe in their book, “Owning the World of Ideas” (highly recommended as an overview of sociological perspectives of IP), the increased regulation of IP has been accompanied by an increased deregulation of labour. The result is that IP has become ever more concentrated into the hands of capitalism’s high temple – the corporation. As the authors put it, “IPRS are social conventions that regulate access and use of the products of the human mind to promote/balance particular interests and must be studied as such.”

Capitalism also frames property rights as ‘natural’, when they are in fact defined socially. ‘You wouldn’t steal a car’ rings slightly better than ‘you wouldn’t infringe the socially-defined property rights of another.’ The ‘natural’ perpetual property rights in the physical world have become the benchmark against which ‘artificial’ rights like IP are judged.

. . . .

A recent paper by law professor Dan Burk may ruffle your patent feathers. In “The Sociology of Patenting,” Burk unpacks Mark Lemley’s 2015 controversial essay, “Faith-Based Intellectual Property.” Lemley argues, “Rather than following the evidence and questioning strong IP rights, more and more scholars have begun to retreat from evidence toward what I call faith-based IP, justifying IP as a moral end in itself rather than on the basis of how it interacts with the world.”

Link to the rest at IP Kat

The basis for IP law in the United States is Article 1, Section 8 of the United States Constitution, “Powers of Congress”. One of the enumerated powers is:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

The “Necessary and Proper” clause at the end of Section 8 may also come into play for the protection of intellectual property:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

While drafting this clause, the drafters of the Constitution were undoubtedly influenced by the British Statute of Anne, passed in 1710. Under this Statute, copyright term lasted 14 years plus an optional renewal of 14 additional years.

French copyright law originated as a “right to publish” rather than an author’s right and was originally a privilege granted by the monarch. The first privilege granted in France was given by Henri II in 1551 to Guillaume Morlay, his lute player.

PG suggests that this enumerated power and laws protecting intellectual property passed thereunder have been beneficial for both the progress of science and the arts (more and less useful) in the United States.