Intellectual Property as cultural technology

25-26 June 2012

London School of Economics, London UK

Workshop website

Monday 25 June

9.00 - Narrating creativity

Chair: Martha Woodmansee (Case Western Reserve)

• Lorraine Piroux (Rutgers), ‘What Can the Possessed Possess?’; Intellectual Property, Authorship, and Diderot’s Two Conceptions of Genius’
• Barton Beebe (NYU), ‘Bleistein; Or, intellectual property law and the problem of aesthetic progress’.
• Dan L Burk (UC Irvine) & Jessica Reyman (Northern Illinois), ‘Patents as genre’.

11.30 - IP as cultural technology (1) 

Chair: Luke McDonagh (LSE)

• Plamena Popova (UniBIT), ‘Copyright law: impacts on urban shaping’
• Matteo Ferrari  (Trento/McGill) ‘GI Narratives’
• Jessica Silbey (Suffolk), ‘The work of craft: work makes work’

14.30 - IP as cultural technology (2)

Chair: Mario Biagioli (UC Davis)

• Catherine M. Montgomery and Javier Lezaun (Oxford), ‘Virtual drug development and the material trans/missions of intellectual property’.
• Gregory Radick (Leeds), ‘Understanding technoscience: The case for an expanded conception of intellectual property’.
• Steven Wilf (Connecticut), ‘The imagined patent in late nineteenth-century America’.
• Lida Barner (UCL), ‘Deviating from the norm? ‘Jewish inventors’ in Nazi Germany’.

Tuesday 26 June

9.00 - Techniques of creative appropriation

Chair: Simon Stern (Toronto)

• Laura J Murray (Queens), ‘Nineteenth-century US newspaper exchanges: Legal, Cultural, and Professional Contexts’
• Kirsty Robertson (Western Ontario), ‘The art of the copy: A look at appropriation, copyright and labour’.
• Mario Biagioli (UC Davis), ‘Strange appropriations: the plagiarist function in science’.
• Martin Fredriksson (Linköping), ‘The ideology of piracy – a study of pirate parties in North America’.

11.15 - Forensic technologies

Chair: Dev Gangjee (LSE)

• Michele Gazzola (Humboldt) , Linguistic Justice and Intellectual Property: An Evaluation of the Distributive Effects of the Language Regime of the European Patent Office
• Niels Van Dijk (Vrije Universiteit Brussel), Immaterial Matters of Dispute. A Cartography of Intellectual Rights in Practice
• Michael J Madison (Pittsburgh), The Wages of the Work, in Copyright and Beyond

14.00 - Culturing knowledge

Chair: Josh Sarnoff (De Paul)

•  Adriana Craciun (UC Riverside), “Intellectual Property and the Culture of Exploration”
• Chloe S Georas (Puerto Rico), The “Internet-Museum” and Digital Debris
• Tina Piper (McGill), The military origins of intellectual property law.

16.30   Closing discussion

Chair: Kathy Bowrey (UNSW)

Fourth Annual ISHTIP Workshop:

Intellectual property as cultural technology

London School of Economics, 25 & 26 June 2012

Intellectual property rights are generally supposed to function as means of stimulating and diffusing cultural production. This instrumentalist understanding of how intellectual property works as a cultural technology has survived for more than two centuries; it has been amplified and refined by a long tradition of economic analysis and economic history, and it has now been retrenched as the basic premise of contemporary debates about public domains, digital commons, and the expansion of corporate semiotic power. How plausible or illuminating is this pervasive representation of the agency of intellectual property rights?

There are some familiar ways of testing this representation. Lawyers and economists ask whether patent laws work as they should in the domains of, for example, software or biomedical innovation, they speculate as to the reasons why creativity in the fashion industry seems to flourish in a ‘negative space’ (a domain unframed by copyright law), and they ask how formal intellectual property rights work with ‘social norms’. But these lines of inquiry still reduce culture to what can be rendered in terms of scarcity, efficiency, and instrumentality.

The theme of this conference seeks to elicit alternative approaches to the cultural implications of intellectual property and cultural property laws. A rubric that turns on the terms ‘culture’ and ‘technology’ can only be open-ended, but the following questions might be taken as a rough starting point for reflection:

1. How might we understand the implication of different forms of intellectual or cultural property in economic, political, aesthetic, or scientific cultures? How might we schematize the ‘functions’ or ‘effects’ of intellectual property law in terms other than those of instrumentality, efficiency, or repressive power?
2. Do intellectual property regimes themselves have specific cultures? Here, ethnographic, historical, or sociological analyses might reveal the specific practices, techniques and media that condition the existence and effects of intellectual property forms.
3. Might we understand intellectual property as a mode of cultural creativity in its own right? Intellectual property law has evolved a complex set of fictions, semantic artifacts, themes, and figures that have an existence in broader cultural life, not just as agents of encouragement or constraint, but as conceptual resources that have shaped the discursive fields of various social cultures. Somewhat more abstractly, regimes of intellectual property have turned the improbable notion of ‘intangible property’, or of ‘intangible things’, into common currency. So, instead of seeing legal forms as secondary ratifications of cultural figures, might we instead explore intellectual property law’s own cultural intelligence and authorship?

We invite contributions from established and doctoral scholars working in the broad field of the humanities and the social sciences, including anthropology, economic history, history of science, media studies, literary theory, science studies, and critical theory, as well as legal history and legal theory.

Papers selected for presentation at the workshop will be circulated in advance to registered participants. Abstracts of proposed papers (together with a brief author bio) should be submitted by 1 March 2012. A maximum length of 9,000 words is recommended.

Important dates

• Submission of proposal (abstract and bio): 1 March 2012
• Notification of acceptance: 31 March 2012
• Submission of paper: 1 June 2012
• Workshop: 25-26 June 2012

Contacts

For information and programme updates visit the ISHTIP website

Please also visit the specific website for the Workshop at the LSE

Abstracts and author bios can be submitted to any of the following, who will circulate these to the Program Committee.

Alain Pottage, Law Department, LSE: r.a.pottage@lse.ac.uk

Tatiana Flessas, Law Department, LSE: t.flessas@lse.ac.uk

Dev Gangjee, Law Department, LSE: d.gangjee@lse.ac.uk

Elena Cooper

Orton Fellow in Law, Trinity Hall, Cambridge

Abstract

While the history of the painting copyright provisions of the Fine Arts Copyright Act 18621 has been the subject of recent scholarship,2 very little is known about the detail of the debates that took place in the body which led the campaign for reform: the Artistic Copyright Committee of the Society of Arts, Manufactures and Commerce. Appointed in 1857 under the Chairmanship of Sir Charles Eastlake (then President of the Royal Academy of Arts), the Committee drew together representatives from a broad cross-section of the Victorian art-world, including collectors, museum administrators, engravers, photographers, sculptors, architects and painters.

Drawing on previously unpublished archival material, this paper will chart the history of the debates in the Copyright Committee in the period from 1857 to 1862. Particular prominence will be given to the contrasting positions taken by the Committee’s two lawyer protagonists: Edwin Wilkins Field and Delabere Roberton Blaine. Using the different visions of copyright put forward by Field and Blaine as a starting point, the paper will tease out the themes and legal issues surrounding artistic copyright which came to be debated in the later nineteenth and early twentieth century, to codification in 1911. In doing so, the paper will consider the legacy of these mid-nineteenth century debates, reflecting on to what extent the Artistic Copyright Committee of 1857-1862 was a microcosm for the interests and positions on copyright which came to played out later in that century and beyond.

Ramon Lobato and Julian Thomas

Institute for Social Research, Swinburne University of Technology

Abstract

From the perspective of rights holders, piracy represents lost revenue. In this article we argue that piracy, nevertheless, has important generative features. We consider the range of expanding commercial opportunities that piracy opens up around the media industries, and we offer a preliminary model of transnational anti-piracy enterprise. We situate piracy not only in relation to the law, but as an element of what we take to be a larger informal media sector, characterised by close relationships with formal businesses that are not necessarily aligned to media production. Our analysis notes the increasing commercialization of piracy-related research, enforcement, and technology, and the continuing development of new business models for capturing revenue from pirate distribution. A case study of “speculative invoicing” lawsuits demonstrates both the extent of this commercialization and its detachment from the mainstream content industries. By focusing on the diversity, agency and autonomy of anti-piracy businesses, we seek to move the deadlocked piracy debate away from sectional advocacy, and toward a more positive analysis of the complex legal and economic ecologies of intellectual property.

Jose Bellido

School of Law, Birkbeck, University of London

Abstract

One year after signing the Paris Convention of Industrial Property (1883), Jose Maria Torres Caicedo, the president of the most important copyright association at the time, the Association Littéraire et Artistique Internationale (ALAI), sent a letter to the French Ministry of Foreign Affairs. His main concern is to reach a bilateral copyright agreement between the tiniest Latin American country, the Republic of El Salvador and France. Few days earlier, he had publicly announced the forthcoming bilateral agreement. Few months later, he will be secretly meeting the Swiss politician Numa Droz to convince him of the urgent need for a multilateral copyright gathering, what will become the major international copyright agreement still in force, the Berne Convention (1886). This paper explores the footsteps and problems of political representation between person and office in the political history of international intellectual property. It follows the complex, gentle and multifaceted persona of Jose María Torres Caicedo (1830-1899). Torres Caicedo was not only a Colombian writer and a Latin American diplomat; he became one of the first cosmopolitan IP scholars.

Kathy Bowrey

Faculty of Law, University of NSW

Abstract

This paper concerns copyright law and the history of photography. As has been documented by other writers such as Edelman, Bently and Deazley, the inclusion of photography in the copyright regime was controversial because of the mechanical and scientific nature of the method of production. However there is more to the story of copyright law and photography than one about classificatory objections and the derisory attitudes of particular legal and cultural elites about a new technology. The legal history needs to be understood in light of a much wider celebration of the wonder of photography and its importance to the world. Enthusiasm for the photographic medium impacted on political, economic and social life. This in turn left a mark on copyright law.

My presentation considers (1) The role of photography in constructing the political idea of the Nation and the priority of creating a public visual space; (2) the importance of copied images to Art Education, ideas of progress and civilisation; (3) the production of authorized copies for the art reproduction market, and (4) broader debates about piracy and the apparent ease of enforcement of a controversial copyright.

This historical account of photography and the public visual space is a positive one about how a complex mix of the public, political and economic motivations impact on rights in practice.

Martha Woodmansee

Professor of English and Law, Case Western Reserve University

Abstract

Literary commentary, interpretation, translation, adaptation, sequelling, and criticism have figured among the defining activities of literary culture since the invention of printing. This paper is concerned with the constraints being imposed on these activities by the growth of the entertainment franchise. I examine the efforts of the Harry Potter franchise to constrain the diverse “fan” activities inspired by J.K. Rowling’s Harry Potter novels. My focus is this franchise’s legal action in Warner Bros. and J.K. Rowling v. RDR Books (2008) against the author of a comprehensive “reader’s companion” to the multi-volume Harry Potter universe. While the franchise prevailed, preventing this useful handbook from seeing the light of day, I argue that the court opinion should nevertheless be viewed as supportive of such “follow-on” activities. Through close reading of the court documents I suggest that the court’s acknowledgment of the importance of such activities to a vibrant literary culture may be traced to the expert testimony that painstakingly situated the handbook in an established tradition of literary practice. By demonstrating how the detailing of traditions of practice can help to educate judges, Warner Bros. v. RDR Books suggests the vital role that current “best practices in fair use” initiatives can play in curbing franchise ambitions.

Marett Leiboff

Legal Intersections Research Centre, Faculty of Law University of Wollongong

Abstract

Pray, Sir, in all the reading which you have ever read, did you ever read such a book as Locke’s Essay upon the Human Understanding? ——Don’t answer me rashly, –because many, I know, quote the book, who have not read it,—and many have read it who understand it not:— Laurence Sterne, The Life and Opinions of Tristram Shandy, Gentleman, Vol. II, Chap. II

John Locke’s An Essay Concerning Human Understanding, first published in 1690, contains the blueprint for copyright law’s axiomatic distinction between unprotectable ideas and protectable expression. Locke claims that our minds are blank slates – the famed tabula rasa – which draw upon freely available ideas that interact with the mind to create expression. Thus sense data – ideas – must be free and available for all. Only expression, as a production of the output of ideas, can be the subject of copyright protection.

This seemingly simple delineation between idea and expression is an artifice which relies upon a mechanical and imaginary mode of thinking that does not conform to the conditions in which creativity occurs. Yet it is grounded in a long since discredited theory of the mind.         While Locke’s notion of idea eventually persuaded the courts during the 18th century literary property debates, thus vouchsafing its place in copyright, its premise was the subject of considerable hilarity even during the same period.

Indeed, Locke’s conception of ‘idea’ was far from accepted during the 18th century. In this paper, I will trace the key concepts underpinning Locke’s conception of idea and their dismissal through the agency of Laurence Sterne’s digressive comic masterpiece The Life and Opinions of Tristram Shandy, Gentleman. This nine- volume novel published during the middle of the 18th century not only sent up Locke’s construction of the processes of thought and the notion of idea itself, but through the fabric of its creation – the use of blank and black pages, squiggles and dashes, interspersed sheets of marbled paper – and the textual devices used throughout, Sterne sought to unravel its central tenet: that creation and thought cannot be contained and controlled mechanically and mechanistically. Tristram Shandy’s shambolic proto-21st century creativity provides a critical gesture through which to explore the founding ideals of the 18th century copyright cases.

Steven Hubicki

Griffith Law School

Jason J. Du Mont and Mark D. Janis

Max Planck Institute for Intellectual Property & Competition Law;

Chicago-Kent College of Law; Indiana University Maurer School of Law

Abstract

Design patent protection is the oldest American form of intellectual property protection for ornamental designs, but still the most enigmatic.  Congress passed the first design patent legislation in 1842, operating on the assumption that existing rules for utility patents could be incorporated en masse to protect designs.   This Article questions that assumption.  Drawing on new archival research and historical analysis, this Article demonstrates for the first time how the design patent system originated.  We analyze the international trade aspects of the first design patent legislation, linking the legislation with a brief burst of protectionist measures associated with the Whig party.  We also examine technological innovations that ushered in the first major era of American industrial design in key antebellum industries, and we analyze lobbying efforts on behalf of those industries that led to proposals for early design protection, proposals that did not assume the incorporation of patent rules.  We also prove for the first time how the American design patent system originated as a knock-off of British copyright and registered design legislation, and why the American system was likely forced into a patent rubric.  Finally, we conclude by offering concrete suggestions for the courts and Congress to ease the design patent system back to its non-patent roots.