THE HISTORY OF INTELLECTUAL PROPERTY AS THE HISTORY OF CAPITALISM.

• Author: Bracha, Oren

CONTENTS INTRODUCTION I. ORIGIN HISTORY II. NEW HISTORY OF CAPITALISM III. INTELLECTUAL PROPERTY WITHIN A HISTORY OF CAPITALISM FRAMEWORK INTRODUCTION

The field of the history of intellectual property that a quarter of a century ago was sparsely populated is a burgeoning one. A rich body of historical work of many methodological stripes examines many aspects of intellectual property in various periods. (1) The purpose of this essay is to pause and ask what is the point of writing the history of this field and how it should be approached. These questions are aimed not at methodology in the technical sense, but rather at the overarching purpose of the enterprise and the resultant proper organizing theoretical and orienting frame for its pursuit.

I argue that there is a strong drive in this subfield for producing scholarship within a frame of origin history. Origin history is geared toward uncovering the true and accurate meaning of a legal rule, concept, or practice at one discrete moment in the past. This may seem to be pure and simple history writing: discovering "what things were really like." Nevertheless, origin history, like all history writing, has a specific orienting frame. Its guiding principle is locating true and genuine meaning in a privileged past moment. Such perspective assumes constancy--that things are or at least should be as they were--or at the very least, takes little interest in change. The tacit claim of origin history is twofold: to explain and justify. The assumption is that the meaning discovered in the relevant past moment both offers a historical explanation and justifies present choices. Both are false, but my focus here is on the failure of the former.

Laying origin history aside, I discuss an alternative frame for writing intellectual property history: the, so called, new history of capitalism. Taking root in American history departments in the last two decades, this approach is fueled by a renewed interest in studying the history of economic relations with an emphasis on the new and distinct system of capitalism. (2) There is a close fit between this approach and historical research of intellectual property. This fit is rooted in the fact that the appearance of the field of intellectual property, a distinctly modern construct, coincided with and was an element of the rise of capitalism. (3) There is, however, also danger lurking in a common understanding of several central features of the new history of capitalism approach. The danger is that overemphasis on contingency and constructivism is likely to lead to the conclusion that capitalism is simply whatever random collection of features that political struggles and historical accidents happened to produce. This, in turn, reduces history into description and denies it any explanatory force. By reducing a dynamic and developing set of relations into a constant thing, origin history reifies its object of study. By reducing it to a list of historical accidents, contingency history causes its object to disintegrate.

This essay concludes by suggesting that an attractive frame for studying the history of intellectual property is the history of capitalism shorn of its strong contingency drive. Within this frame capitalism, rather than seen as a random collection of accidental forms, supplies a structured and orienting framework. The rise of intellectual property was part of the creation of a new and distinctive set of social relations based on the commodity form and market exchange as a pervasive type of human interaction that radically transformed all aspects of society. I discuss three features that make intellectual property a particularly fitting, as well as somewhat distinctive, object of study within the organizing frame of the history of capitalism: the history of intellectual property understood as the study of the process of commodification applied to the unique subject matter of information; the structural role played by intellectual property in the development of capitalism; and intellectual property as an area where some of the naturalizing assumptions of a market society are prone to float to the surface and occasionally be challenged.

1. ORIGIN HISTORY

   Why write the history of intellectual property? A standard answer given to this question is the dramatic rise in importance of this field in recent decades. (4) In the modern "information society," this answer observes, informational resources of different kinds play an increasingly central economic, social, and cultural role. The legal field that governs the production and use of such resources, known as intellectual property, has experienced a matching upsurge in its importance. And as intellectual property rose to prominence as a socio-legal phenomenon, scholars in various academic disciplines, including economics, philosophy, and also history, have come to take greater interest in exploring it by deploying their various outlooks and methodological tools. (5) But this is no answer to the question posed here, which inquires not after a positive explanation for the rise of multidisciplinary interest in this area, but a purpose. The question, in other words, is: what does one seek to accomplish by researching, uncovering, and elaborating the history of the various legal fields that came to be known as intellectual property? And this leads to a second question that follows closely: given such a purpose, what is the preferred method or approach for writing this history?

   Legal historians of intellectual property, especially those working in American law schools, are subject to a constant gravitational force applied to their work in the field. This force pulls toward scholarship that is focused on origin, constancy, or both. Origin orientation frames the purpose of history as discovering at some constitutive moment, hidden far in the past, the true and authoritative meaning of various present-day rules, concepts or practices within intellectual property law. (6) Was there common law copyright under eighteenth-century English common law? (7) Did juries decide questions of patent validity in England circa 1791? (8) What exactly did the framers of the U.S. Constitution mean in 1789 by the specific text of the intellectual property clause that empowers Congress to legislate in the areas of patents and copyrights? (9) And so on and so forth. There are two latent views mingled together in such a frame. The first is epistemological. It assumes that a historical explanation of something (a doctrine, an institution, a concept) is achieved by uncovering its true form or meaning at one particular moment, i.e. the moment of its origin. To explain what an injunction is, one has to focus on how seventeenth-century (or earlier) courts of equity understood and applied it. The second is prescriptive. It assumes that the original meaning or function of the thing enjoys authority, that it mandates how the thing should be. These views are further cashed out in two tacit assumptions that underlie origin inquiries in legal history. First it is assumed that the authoritative meaning of the relevant intellectual property rule or concept located in the deep past remained relatively constant. To be sure, some change is allowed, but this is usually relegated to the limited sphere of accommodating new technological, economic, or social circumstance while maintaining the underlying principle. Unless one could point at a sharp and direct change, usually in the form of explicit legislative "intervention." Second, it is assumed that this foundational past meaning is binding in the present simply by virtue of its existence: how courts should analyze the grant of injunctions in patent cases is determined by what English courts of equity did in 1789, (10) and whether the Patent Office has power to engage in administrative review of patent validity hinges on the eighteenth-century practices of the Privy Council. (11) Within such a framework, history is the handmaid of a particular version of legal reasoning: it's role is to recover from the mists of the past the true and constant meaning of the law which holds authority over the present.

   There are strong reasons for this pull toward history as a search for true and authoritative origin. Law is a field built on authority, often understood as content-independent reasons for applying a particular rule or reaching a certain result. (12) In a common-law system this authority is routinely identified with what the law or practice of courts about the law had been for a long period of time. (13) To be sure, the common law is also associated with incremental change, growth and adaptation. Nevertheless, the drive to portray legal decisions as based on "discovering" what the law had been for a long period (if not forever then since "time immemorial" or some other point sufficiently remote in the past to bestow authority) remains strong. (14) Notwithstanding that central parts of intellectual property law are statutory, this common-law-induced search for authority in the distant past exerts its influence and indeed is often extended beyond the past practices of courts to those of legislatures and even administrative bodies.

   In the U.S., the power of common-law-colored pursuit of past authority is greatly amplified by originalism. Originalism, in its narrow sense, is an approach to interpreting the Constitution. (15) It identifies the meaning of the constitutional text with its understanding by its drafters, ratifiers or a more inclusive group of people at the time it was originally given force. (16) Originalism has held sway over American constitutional thought for decades and has recently experienced a resurgence in its power. (17) The influence of the originalist impulse in the U.S., however, goes well beyond the constitutional realm. Intellectual property scholarship has its own domain of constitutional originalism centered around the so-called Intellectual...