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Alpana Roy, Intellectual Property Rights: A Western
Tale, 16 Asia Pac. L. Rev. 219 (2008)

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Intellectual Property Rights:
A Western Tale

Alpana Roy

Even today, when the development and expansion of intellectual property
protections is justified or criticised, the Western philosophical tradition is
generally evoked. Appeals to natural rights, Lockean labour theories of property
and Kantian or Hegelian theories of personality abound. Alternatively, economic
principles and utilitarian rationales are drawn upon to rationalise or question
intellectual property laws as incentive structures that produce a socially optimal
supply of intellectual creations. In both these moral and utilitarian arguments,
scholars address intellectual property laws purely abstractly, as promoting reified
rights in unremarkable and indistinguishable intangibles.'

1. Introduction

A sophisticated analysis of intellectual property law demands not only an

understanding of its underlying philosophy, but also an appreciation of its
structural base. The purpose of this article is to trace the contours which have
shaped intellectual property's story. This article takes the view that intellectual
property is not only a Western concept, but also a thoroughly modern one. As
Rosemary Coombe poignantly asserts, both the justifications and criticisms
of expanding rights in intellectual ?roperty are generally based in Western
philosophical traditions, even today. Moreover, Western constructs, such as

Lecturer, Faculty of Law, University of Technology, Sydney. BA (UTS), LLB (Hons) (Syd),
MA (Journalism) (UTS), DipLegPrac (College of Law), PhD (Syd), GCHETL (UTS),
Barrister of the Supreme Court of NSW and the High Court of Australia.
Rosemary J Coombe, The CulturalLife ofIntellectual Properties:Authorship,Appropriation,
and the Law (Duke University Press, Durham and London, 1998) p 7.


liberalism, have been embodied into the substance of this area of law. And
concepts which are integral to a liberal understanding of intellectual property
law (such as 'private property', 'authorship', and 'possessive individualism') are
Western and modern constructs, as opposed to universal ones. Indeed, the law
in this area has taken for granted certain basic categories and constructions the
foundations of which are uncontested, and which through colonialism have now
gained the status of universal truths. By illustrating that categories we consider
as 'natural' have actually been culturally produced in hierarchies and structures
of difference, a major aim of this article is also to trace the ideological operations
of intellectual property law.
Coombe notes above that the laws of intellectual property are usually
addressed by scholars 'purely abstractly'. 3 As the history of Western intellectual
property law is far from a universal experience, this is clearly an area which could
benefit from further contextual analysis. Christopher May observes that legal
scholars are generally rather parochial in their analysis of intellectual property
rights, and tend to focus on the specifics of intellectual property law rather
than the broader global political context in which these rights are situated.' In
this way, legal scholars are unlike their non-legal counterparts, who are often
aware of both the legal and non-legal debates surrounding intellectual property
rights.' A contextual analysis of intellectual property is important, as it furthers
our understanding on how discourses (such as law) are internally categorised,
and epistemologically and ontologically structured. As Peter Drahos suggests,
'[t]he law's own internal taxonomic structures may help us to understand the
character of intellectual property rights, especially if this legal character is itself
based on some pre-existing philosophical idea or influence.' As the Western
idea of intellectual property is not universal, it is important to be sensitive to the
particular world view(s) which continue to motivate intellectual property rights

' Ibid.
4 Christopher May, 'Why IPRs are a Global Political Issue', 25(1) European Intellectual
Property Review 1-5, 1 (January 2003). Although, Bently and Maniatis assert that while
intellectual property discourse has traditionally been fairly doctrinal and dry in its
approach, there has recently been a burgeoning of interdisciplinary studies in intellectual
property, in areas such as cultural studies and history. See Lionel Bently and Spyros
M Maniatis, 'Introduction' in Lionel Bently and Spyros M Maniatis (eds), Intellectual
PropertyandEthics (Sweet & Maxwell, London, 1998), vii-xi, vii. Ostergard also suggests
that the increasingly global and interdependent nature of these rights have placed them
firmly within the domain of politics and economics, and not just in the narrower sphere
of the law. See Robert L Jr Ostergard, The Development Dilemma: the PoliticalEconomy
of IntellectualProperty Rights in the InternationalSystem (LFB Scholarly Publishing LLC,
New York, 2003) pp 1-2.
SMay, Ibid, p 1.-
6 Peter Drahos, A Philosophy of Intellectual Property (Dartmouth, Brookfield USA, 1996)
p 14.

on a global scale, and also be wary of the status that these laws have assumed for
themselves through international agreements such as TRIPS.
The purpose of this article is two-fold. Firstly, as intellectual property is
far from a global experience, I wish to excavate its essentially Westcentric
genealogies and foundations (as I am uneasy by its claims of apparent
universality). Secondly, due to the proliferation, and indeed, globalisation of
intellectual property rights, the purpose of this article is also to trace the Western
philosophical theories which have traditionally been used to both justify and
criticise expanding rights in intellectual property. Indeed, both the justifications
and the criticisms of expanding rights in intellectual property form part of the
same Western dialectic. In doing so, I hope that this article will contribute
towards scholarship which encourages a more contextual and expanded
understanding of the concept of intellectual property law.

2. The Western Concept of Intellectual Property

Textbooks on intellectual property usually begin with a 'black-letter' definition

on the substance of this area of law. Drahos suggests that definitions are either
'extensional' or 'intensional'. According to Drahos, an extensional definition
of intellectual property law would simply list the main categories of intellectual
property, such as copyright, trade marks and patents, and also include more
recent intellectual property areas, such as plant varieties and integrated
circuits. 9 On the other hand, intensional definitions of intellectual property are
more nebulous, and could be stated as: 'rule-governed privileges that regulate

The Agreement on Trade-Related Aspects of Intellectual Property Rights, or 'TRIPS',

was established as part of the World Trade Organization (WTO) regime that came into
operation on 1 January 1995. TRIPS is one of the number of agreements which make up
the WTO, and links intellectual property rights to WTO obligations. This international
legally binding agreement establishes minimum standards for intellectual property rights
which members of the WTO must implement through national legislation. Under
TRIPS, the 151 members of the WTO (at 27 July 2007) are required to give effect to
a set of basic minimum principles and rules covering copyright, trademarks, patents,
layout-designs of integrated circuits, geographical indications, industrial designs, and
protection of undisclosed information. There are also uniform remedies available for the
enforcement of these rights. In many cases, nations are applying higher standards than
were previously applied in their domestic law. For example, longer terms of protection,
fewer exceptions to the scope of rights, and sometimes new rights. The full text of the
TRIPS Agreement can be found on the WTO website: see
docse/legal_e/final_e.htm#TRIPs (retrieved 13 August 2007).
8 Drahos, op cit note 6, p 4.
' lbid, pp 4-5.

the ownership and exploitation of abstract objects in many fields of human

The Western concept of 'intellectual property' is now generically used to
describe numerous legal regimes which emerged independently of each other,
at different times and places. For example, England's Statute of Anne (1709) is
often said to be the first copyright legislation, and the Statute ofMonopolies (1623)
is said to be England's first patent statute and is believed to have been heavily
influenced by developments in Venice." The term 'intellectual property'now
encompasses artistic and literary property, as well as industrial and commercial
property. It seems that it was in the 1950s that the term 'intellectual property'
was first used to refer to both industrial property and copyright.' 2 The scope of
'intellectual property' was first defined internationally under Article 2(viii) of the
Convention establishing the World Intellectual Property Organisation (WIPO)
1967, where the term was defined to include the rights relating to: literary,
artistic and scientific works; performances of performing artists, phonograms,
and broadcasts; inventions in all fields of human endeavour; scientific
discoveries; industrial designs; trademarks, service marks, and commercial names
and designations; protection against unfair competition; and all other rights
resulting from intellectual activity in the industrial, scientific, literary or artistic
fields.' 3

The WIPO definition of 'intellectual property' has largely been incorporated

into the TRIPS Agreement, where 'intellectual property rights' include: copyright
and related rights (Articles 9-14); trademarks, including service marks (Articles
15-21); geographical indications (Articles 22-24); industrial designs (Articles
25-26); patents (Articles 27-34); layout-designs (topographies) of integrated
circuits (Articles 35-38); undisclosed information, including trade secrets (Article
39). Article 40 of TRIPS also addresses the issue of control of anti-competitive
practices in contractual licences, to allow members to legislate to control abuses
of intellectual property rights which have an adverse effect on competition
in a market." The general goals of TRIPS are set out in the Preamble, and

10 Ibid, p 5.
" Sam Ricketson and Megan Richardson, Intellectual Property: Cases, Materials and
Commentary (LexisNexis Butterworths, Sydney, 2005), pp 5-6. See further Ostergard,
op cit note 4, p 12.
12 See A Bogsch, Brief History of the First 25 Years of the World Intellectual Property
Organization (Geneva: WIPO, 1992) p 8. See also Georges Koumantos, 'Reflections
on the Concept of Intellectual Property' in Jan JC Kabel and Gerard JHM Mom (eds),
IntellectualPropertyand Information Law: Essays in Honour of Herman Cohen Jehoram (The
Hague: Kluwer Law International 1998), 39-45, 39.
13 WIPO was established in 1967, and is one of the intergovernmental organisations
administered under the UN. For further information, see World InternationalProperty
Organization: (retrieved 9 September 2007).
1 The full text of the TRIPS Agreement is available online. See note 7 above.

include the reduction of distortions and impediments to international trade;

promotion of effective protection for intellectual property rights; and ensuring
that measures to protect intellectual property rights do not become barriers to
legitimate trade." The formal objectives of TRIPS are found in Article 7 of the
Agreement, which states that the protection and enforcement of intellectual
property rights should contribute to the promotion of technological innovation;
the transfer and dissemination of technology; the mutual advantage of producers
and users of technological knowledge in a manner conducive to social and
economic welfare; and a balance of rights and obligations.' 6
The general provisions and basic principles of TRIPS are found in Articles
1-8.17 A reading of these provisions clearly indicates that the concept of
intellectual property is essentially approached from a trade and commerce
perspective, and intellectual property subject matters are seen as private property
interests to be enforced principally through private civil action. Several scholars
point out that not only has this very Western idea of intellectual property -
particularly its status as private property - been universalised with the TRIPS
Agreement, this privileging of private rights could have disturbing effects for
global welfare."
The following section will briefly trace the two major theories traditionally
used to explain the idea of intellectual property: (i) John Locke's labour
theory of property; and (ii) utilitarianism. The reader should note that there
is considerable overlap between these two philosophical traditions, and while
both are perhaps most commonly used to justify and criticise expanding rights
in intellectual property, other Western approaches - such as Marxism and
Hegelian theories - have also been used to further understanding in this area.' 9
Significantly, while most justifications for intellectual property rights are based
on Western philosophical traditions from the modern era, there are older non-
Western historical precedents for the recognition of this right.20

(a)John Locke's Labour Theory ofProperty

The impact of the work of John Locke on Western political philosophy and

15 Ibid.
16 Ibid.
17 Ibid.
1 Ibid.
19 For example, see Peter Drahos' philosophical analysis of intellectual property using both
Hegelian and Marxist approaches, op cit note 6, pp 73-117.
20 For example, Alford suggests that intellectual property issues can be traced back to the
Chinese Zhou dynasty (1122 BC) where issues of commodity identification arose. See
William P Alford, To Steal a Book is an Elegant Offense: Intellectual Property Law in
Chinese Civilization (Stanford University Press, Standford, 1995).

property rights, including intellectual property rights, has been profound.2 1 As

his work is already so well known, this section will simply outline the key tenets
of Locke's discussion of property in the Two Treatises of Government (1690).
Locke's brief discussion of property is contained in Chapter V of the
Second Treatise. Given the far-reaching impact of his theory, Locke's brevity of
discussion of property is not insignificant. His theories on property were used
to justify colonisation and the expropriation of the other's lands. As the vast
majority of indigenous groups were nomadic hunters and gatherers, his theory of
property was essentially used to delegitimise and invalidate indigenous systems
of land ownership. In short, Locke argued in his labour theory of property that,
subject to two limitations (discussed below), rights in property may be obtained
through the mixing of one's labour. Natural law was the dominant Western legal
theory during the time of Locke's writings, and clearly influenced his work.
As natural law was the leading Western legal tradition which existed during
the time the first intellectual property laws emerged, it heavily influenced the
development of European intellectual property systems.2 4 Natural law theory
was also extensively used by English jurists to justify intellectual property as
property .
As natural law theory claimed that the world had been given to people in
common by God, Locke attempted to reconcile how a 'God-given commons'
and private ownership could co-exist.2 6 Locke solved this dilemma by his claim
that 'every Man has a Property in his own Person. This nobody has any right
to but himself. The labour of his body, and the work of his hands, we may say,
are properly his. 2 7 ThUS, according to Locke, property rights may be acquired

21 See Drahos, op cit note 6, pp 41-72. See further Edwin C Hettinger, 'Justifying
Intellectual Property' (1989), 18 Philosophy and Public Affairs, pp 31-52; Justin Hughes,
'The Philosophy of Intellectual Property' (1988) 77 Georgetown Law journal, pp 287-
22 John Locke, Two Treatises of Government (Everyman, London, 1993). For commentaries
on Locke, see Richard Ashcraft (ed), John Locke: CriticalAssessments (Routledge, London
and New York, 1991) (Volume 3 contains the discussion on Locke's property theory).
3 For a very readable overview of natural law, see Margaret Davies, Asking the Law
Question: the Dissolution ofLegal Theory (Lawbook Company, Sydney, 2002), pp 73-90.
Staniforth Ricketson, The Law of IntellectualProperty: Copyright, Designs ' Confidential
Information (LBC Information Services, Sydney, 1999) (loose-leaf service) Vol 1,
p 14 (accessed 13 July 2004). Although Ricketson (at 15) also suggests that natural
law justifications for intellectual property have not been 'fashionable' in common law
jurisdictions, where the focus of the debate has been more on the public benefits of
intellectual property rights.
25 The impact of natural law is clearly evident in the famous English case on literary
property: Millar v Taylor (1769) 4 Burr 2303; 98 ER 201. For a discussion on this case,
see Drahos, op cit note 6, pp 24-25, 27-28.
26 See Drahos, op cit note 6, pp 42-43.
27 Locke, op cit note 22; the Second Treatise, section 27.

by individuals through the mixing of labour with resources: 'Whatsoever

then he removes out of the State that Nature hath provided, and left it in, he
hath mixed his Labour with, and joyned to it something that is his own, and
thereby makes it his Property.28 According to this theory, an unowned object
could be appropriated through the application of human labour to that object.
The objects or 'property' produced as a result of this process belonged to the
individual alone. Locke claimed that objects themselves have very little human
value: it is labour that creates 99% of the objects' value.29
As mentioned above, Locke placed two limitations on the acquisition of
property. The first limitation related to the amount that could be appropriated:
'enough and as good left in common for others'.3 In other words, there was
no limitation placed on the amount that could be appropriated, as long as the
acquisition did not adversely affect others. The second limitation concerned
spoilage, and the amount of an object that could be used. Locke argued that an
individual should not acquire more of an item that can be used before it spoils:
'As much as any one can make use of to any advantage of life before it spoils; so
much he may by his labour fix a Property in.' 1 Thus, not only must one leave
enough and as good for others, one must also not take more than one can use.
As will be outlined in further detail below, there have been several criticisms
of Locke's labour theory of property, particularly when it has been used to justify
intellectual property - although, in fairness to Locke, it is unlikely that he had
intellectual property in mind when he wrote his theories on property.3 2 The
following section will briefly sketch the second major theory historically used to
justify the Western concept of intellectual property: utilitarianism.

(b) Utilitarianism
In Western discourses, the concept of 'utilitarianism' is most commonly
associated with the work of the British philosopher Jeremy Bentham (1748-
1832).33 The central premise of utilitarianism is very well known: in sum, the
doctrine proposes that all action should be directed towards achieving the
greatest happiness for the greatest number of people.
The utilitarian argument of incentives is most commonly used for the
justification of granting intellectual property rights: these rights are necessary as
they provide incentives to produce new intellectual objects, the benefits of which

: Ibid.
29 Ibid, chapter 5, section 40.
30 Ibid, chapter 5, section 27.
3 Ibid, chapter 5, section 31.
32 See Drahos, op cit note 6, p 47.
3 The British philosophers James Mill (1773-1836) and John Stuart Mill (1806-1873) are
also widely acknowledged for their scholarly work on the doctrine of utilitarianism.

will be felt by society long-term.3 4 However, critics of utilitarianism argue that

it is far from clear whether the long-term benefits to society outweigh the short-
term disadvantages of assigning exclusive rights to the creator.3 5 Indeed, this can
certainly be seen on a global scale where countries of the South, due to their own
lack of resources, are heavily dependent on the diffusion of intellectual property
for their technological development. Several studies have also shown that
intellectual property rights severely affect the diffusion of knowledge and ideas.
Moreover, Hettinger points out the paradox in the utilitarian justification for
intellectual property rights: the access to or diffusion of the product/method is
restricted, so that the production, availability and use of new intellectual objects
are guaranteed in the future. 8
Significantly, for the purposes of this article, both utilitarian and Lockean
philosophical approaches to intellectual property are deeply imbedded in
Western theoretical traditions which have historically over-emphasised the role
played by private property in economic development, and have also overlooked
the significant part played by the free exchange of ideas. 9 Moreover, these

3 See, eg, Joseph Schumpeter, Capitalism, Socialism, and Democracy (Unwin Paperbacks,
London and Boston, 1987) .
3 Sol Picciotto, 'Defending the Public Interest in TRIPS and the WTO' in Peter Drahos
and Ruth Mayne (eds), Global Intellectual Property Rights: Knowledge, Access and
Development (Palgrave Macmillan, Hampshire (GB) and New York, 2002), pp 224-243,
36 Carlos M Correa, 'Pro-competitive Measures under TRIPS to Promote Technology
Diffusion in Developing Countries' in Drahos and Mayne (eds), ibid, pp 40-57. In this
paper, I will use the geographical indicator 'North' to refer to Western states (or the
former colonial powers), and countries commonly categorised as 'First World'nations.
Due to its status as a leading industrial nation, I will also include Japan within my
definition of Northern countries - even though it is idiosyncratically non-Western.
The term 'South' will refer to the former colonies, and countries commonly categorised
as 'developing' or 'Third World'. I will generally avoid using the term 'Third World' as
it has been heavily criticised for its negative associations with poverty, disease, famine,
debt, and conflict; and its 'third' place in the hierarchy of the First and Second worlds.
Moreover, the categorisation and division of the world into 'three worlds' is anachronistic
and inappropriate in this post-Cold War era (communist states were previously referred
to as the 'Second World'). The 'three worlds' vocabulary is also inappropriate to describe
the situation of Indigenous groups residing in the 'First World', although arguably in
'Fourth World' conditions. Please note that while I utilise the fairly commonly used
terms 'North' and 'South', others have used alternative indicators. For example, Young
employs the term 'three continents' (ie Asia, South America and Africa), or 'tricontinental'.
See Robert JC Young, Postcolonialism: an HistoricalIntroduction (Blackwell Publishing,
Oxford, 2001) 5.
17 Drahos and Mayne (eds), ibid.
38 Hettinger, op cit note 21, p 48.
3 See David Vaver, 'Some Agnostic Observations on Intellectual Property', 6 Intellectual
PropertyJournal125-153 (June 1991).

traditions have given rise to the idea of 'art' and 'culture' as commodities, where
the European Romantic view of the artist was transformed from an independent
creator to a perty commodity producer. Critics such as Coombe rightly point
out that the 19th century European art/culture system - which continues to
inform Western intellectual property laws - is no longer appropriate in post-
colonial contexts." These essentiallv Western traditions have also infused the
idea of intellectual property rights on a global scale, where these laws have
proven to be fundamentally inconsistent with the value-system of several non-
Western cultures: discussed further in Part 5. The following section follows
some of the key arguments in another Western dialectic on intellectual property:
proprietarianism and instrumentalism.

3. Proprietarianism and Instrumentalism:

Conflicting Western Views on the Scope of
Intellectual Property Protection

As noted above, both the justifications and criticisms of these expanding rights
in intellectual property are generally based in Western philosophical traditions.
The values underlying both the justifications and criticisms also generally stem
from WVestern individualistic notions of property, ownership, and community.
In Western jurisprudence, there have generally been two approaches taken
to the scope of intellectual property protection: the instrumentalist and the
proprietarian. While the instrumentalist approach is generally more concerned
with using intellectual property for desirable social ends, the proprietarian
approach focuses less on societal considerations and more on the individual
rights of the creator. Further discussion on these two perspectives follow.

(a)An Instrumentalist / Public Approach towards

Intellectual Property
An instrumentalist approach towards intellectual property rights focuses on
the societal benefits which can be achieved through intellectual property.
Proponents of the instrumentalist approach argue that information is not
a finite, diminishable resource, which depletes with greater diffusion. : In

Terry Eagleton explores the tension berween the Romantic view of the artist (aesthete),
and the harsh economic reality of the artist turned into a petty commodity producer. See
Terry Eagleton. The Ideology of the Aesthetic (Basil Blackwell, Oxford. 1990), pp 42-43.
56-:9. 64-65.
Coombe, op cit note 1, p 215.
Picciotto. op cit note 35, p 224.

fact, intellectual property is an 'artificially created scarcity', and is only made

scarce through the creation of intellectual property rights.43 Proponents of this
approach point out that intellectual property rights alter the nature of intangible
property by assigning exclusive rights to objects which would otherwise be non-
exclusive. In other words, without intellectual property rights, individuals would
generally be free to use another's ideas as the nature of intellectual activity is
non-exclusive and is only made exclusive through the creation of these rights.
The instrumentalist approach to intellectual property usually finds the
justifications for intellectual property rights within the natural law framework
of Locke's labour theory of property (discussed above) problematic. As the
nature of information and knowledge is 'public' in character, it is said to be in
the 'public domain' until it is protected and controlled by intellectual property
rights. Proponents of this approach argue that the nature of information as
intangible property presents difficulties in 'owning' and 'possessing' it, and
also in preventing others from accessing it. This means that it can be difficult
(if not impossible) for the creator of the intellectual property to appropriate
all the benefits which result from the creation of their work. As David Vaver
suggests: 'We know that ideas are not protected once they leave the creator's
brain and, when society does protect ideas after they have taken some concrete
shape, the protection is always limited in time and space.' Moreover, even
the most zealous advocates of intellectual property rights have never accepted
the notion that 'ideas should be protected in perpetuity and throughout the
world'. Indeed, as early as 1842, Macaulay said with respect to copyright: 'The
principle of copyright is this. It is a tax on readers for the purpose of giving a
bounty to authors. The tax is an exceedingly bad one; it is a tax on one of the
most innocent and salutary of human pleasures.' Although it is clear that
writers must be remunerated if society is going to have a good supply of books,
Macaulay warned that the copyright term should not last 'a day longer than is
necessary for the purpose of securing the good'.
The instrumentalist approach in Western philosophy can be traced back to
at least the European Enlightenment, where freedom of thought and expression
in society was given prime importance. Nevertheless, for the purposes of the
instrumentalist approach, scholars from the Enlightenment argued that freedom
of thought and expression were essential components for individual growth

a Ibid. Vaver also suggests that allocating property rights to knowledge makes ideas less
valuable from a social viewpoint, as those ideas are less frequently used; see Vaver, op cit
note 39, p 151.
45 Vaver, ibid,p 126.
16 Ibid p 127.
Macaulay's speech in the House of Common Debates, 5 February 1842, p 350; cited in
Ricketson, op cit note 24, p 12 (accessed 13 July 2004).
4 Ibid.

and development, and indeed for the attainment of true beliefs. These values
continue to form part of the cornerstone on which modern democracies are
based, particularly in the West. Proponents of the instrumentalist approach
also suggest that excessive intellectual property protection causes restrictions on
the free flow of information, which not only stifles individual growth, but also
actively disrupts human knowledge and technological innovation on a societal

(b) A Proprietarian/ Private Approach towards

Intellectual Property
Proprietarian approaches towards intellectual property rights usually focus on
the rights of the creator, as opposed to societal considerations arising from
intellectual property. Theorists have historically put forward both economic and
moral reasons for proprietarian justifications of rights in intellectual property.
Traditionally, principles of natural law (discussed above) have been used to
justify intellectual property rights, where it is argued that people have a natural
right to the products of their brain.4 9 However, natural law justifications for
intellectual property are usually critiqued for their individualistic approach to
rights, where the interests of society are generally ignored.o
The moral argument usually put forward by proponents of the proprietarian
approach is that a person has a 'natural right' to their intellectual creations and
endeavours. As stated in the famous 18th century case of Millar v Taylor- 'It is
certainly not agreeable to natural justice that a stranger should reap the beneficial
produce of another man's work.'5' However, Pretorius suggests that the moral

4 For example, Article I, s 8 of the US Constitution states that the Congress shall have
the power: '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 US Constitution is available online at the National Archives (US):
html (retrieved 9 December 2005).
For example, in the case of copyright, Kase asserts that this approach: 'sees the
foundation of the rights of an author in the very nature of things.. .These rights are
not created by the laws because they have always existed in the legal conscience of
men. Copyright is thus a natural right growing out of natural lawx See Francis J Kase,
Copyright Thought in Continental Europe: its Development, Legal Theories, and Philosophy
(South Hackensack, NJ: Rothman, 1967) p 8.
51 See Ricketson (note 24 above).
51 (1769) 4 Burr 2303; 98 ER 201. Although note that Ricketson critiques this notion of
'fairness' used to justify intellectual property, and argues that concepts such as 'justice'
and 'fairness' are exceedingly difficult to apply in practice. See Ricketson, op cit note 24,
p 16 (accessed 13 July 2004).

argument underpinning intellectual property rights as 'natural rights' elevates

them above politics, and denies the contingent nature of these rights (given that
it is a matter of choice whether to grant these rights in the first place) .52 This
moral argument has also been used to elevate the status of intellectual property
as a universal human right in Western discourses."
The proprietarian argument draws upon classical liberal conceptions
of property, which typically link rights in ownershi and private property
to notions of individual sovereignty and security.' The view adopted in
this approach is that private ownership over property promotes individual
autonomy, and gives power back to individuals as opposed to social institutions.
However, it is important to note that most intellectual property today is owned
by institutions, and not individuals. 55 Moreover, as Hettinger points out,

52 Willem Pretorius, 'TRIPS and Developing Countries: How Level is the Playing Field?' in
Drahos and Mayne (eds), op cit note 35, pp 183-197, 184, 196.
5 Indeed, intellectual property is recognised as a human right in both the Universal
Declaration of Human Rights (1948) in Article 27, and also in the International
Covenant on Economic, Social and Cultural Rights (1966) in Article 15. Article 27(2)
of the Universal Declaration of Human Rights states: 'Everyone has the right to the
protection of the moral and material interests resulting from any scientific, literary, or
artistic production of which he is the author.' The Universal Declaration of Human
Rights is available online: (retrieved 27
December 2005). Commentators such as Ostergard suggest that the status of intellectual
property as a universal human right is highly problematic, as fundamental needs (such as
food, shelter and medicine) must take priority over the guarantee of intellectual propery.
According to Ostergard, Article 27 clearly reflects the economic interests of Northern
states and the West-centric view of intellectual property as a commodity. Moreover, the
Declaration does not recognise the hierarchy of global interests in intellectual property:
a registered trademark for a multinational is given the same status as a patent for a life-
threatening disease. Ostergard argues that Article 27 directly conflicts with the UN's
other important goals, such as the improvement of health, welfare, and education for
countries of the South. See Ostergard, op cit note 4, pp 12, 28-31. See generally Francois
Dessemontet, 'Copyright and Human Rights' in Jan J C Kabel and Gerard J H M Mom
(eds), Intellectual Property and Information Law: Essays in Honour of Herman Cohen
Jehoram (Kluwer Law International, The Hague, 1998), pp 113-120.
5 As Dworkin suggests: 'some sovereignty over a range of personal possessions [is] essential
to dignity.' See Ronald M Dworkin, 'Liberalism', in Stuart Hampshire (ed), Public and
PrivateMorality (Cambridge University Press, Cambridge, 1978), pp 113-143, 139.
" Hettinger, op cit note 21, pp 45-46. Vaver also rejects the notion that copyright and
patent laws are designed to protect authors and inventors. Instead, he suggests that (even
historically), these laws have not been used to benefit their individual creators/inventors,
but the firms which employ them. See Vaver, op cit note 39, pp 129-136.

intellectual property rights are not necessary for achieving these type of goals in
the same way that other property rights may be, such as owning one's home.56
Drahos suggests that there is a strong move attitudinally towards
proprietarianism in intellectual property.' He asserts that the ideology
which infuses intellectual property globally is the 'proprietarian creed', which
proposes 'that the possessor should take all, that ownership privileges should
trump community interests and that the world and its contents are open
to ownership'. 8 It is the ideology of proprietarianism which underlies the
global expansion of intellectual property rights. Indeed, an underlying theme
common to several Western philosophical traditions, such as natural law
and utilitarianism, is the omnipotent status of property which prevails over
all other interests." For centuries, these traditions have been dominated by
discussions on the necessity of private property, and the importance of private
property rights.o Significantly, as will be discussed below, these theories have
proven to be fundamentally inconsistent with understandings of 'property',
including 'intellectual property', in several non-Western cultures. However,
before outlining some of these incompatibilities, how the very Western idea of
intellectual property became a universal story will be briefly plotted below.

4. Intellectual Property and Colonialism

Even the most cursory glance of intellectual property's history clearly reveals
its inextricable links to the colonial process. Like all laws in the colonial era,
intellectual property laws were products of the imperial project, and were
forcibly 'exported' around the globe to the annexed territories of the imperial
powers. In this way, Western intellectual property laws were inscribed across
various non-Western cultures.
Professor Drahos asserts that the 'transplant of intellectual property laws to
developing countries has been the outcome of processes of empire-building and

56 Hettinger explains further that the right to exclude others from copying one's work is
not essential for one's sovereignty and security, although excluding others from rights in
one's home might be. Hettinger, op cit note 21, p 45.
5' Drahos, op cit note 6.
58 Ibid pp 200-203.
5 Indeed, Becker suggests that there have been too many justifications for private property;
see Lawrence C Becker, 'Too Much Property', 21(2) Philosophy and Public Affairs 196-
206 (1992).
60 As noted by Epstein, '[t]he desirability of private property has been endlessly debated
across the disciplines'. See Richard A Epstein, 'On the Optimal Mix of Private and
Common Property'. 11(2) SocialPhilosophy andPolicy 17-41, 17 (1994).

colonisation.'6 ' To illustrate, English copyright law applied in Hong Kong,

India (including post-independence)6' and parts of pre-independent Malaysia.64
Dutch intellectual property law applied in Indonesia.6 5 Similarly, Spanish patent
law applied in the Philippines while it remained a Spanish colony.66 When the
US took control after December 1898, patent applications from the Philippines
were assessed under US law at the US Patent and Trademark Office.6 7 As a result
of colonial processes, Japanese patent law applied in Korea from 1910, and then
from 1946 American patent law was implemented in Korea as a result of US
military administration.6 8 Interestingly, India acquired a patent law before many
Euro ean countries in 1856, while it was still very much under British colonial
The ratification of intellectual property treaties by the colonial powers directly
affected the colonies. As Gana suggests, with the exception of the Universal

6 Although it is worthwhile to note that there have been a few exceptions to this general
trend. For example, prior to Vietnam's economic liberalisation in 1986, its intellectual
property laws were modelled on those of the former Soviet Union. See Peter Drahos,
'Negotiating Intellectual Property Rights: Between Coercion and Dialogue' in Drahos
and Mayne (eds), op cit note 35, pp 161-182, 164.
62 See Janice Wickeri, 'Copyright in the Chinese Context' in Philip G Altbach (ed),
Copyright and Development: Inequality in the Information Age (Bellagio Publishing
Network Research and Information Center; Chestnut Hill, Massachusetts; 1995), pp 73-
91, 88.
63 See Amir U Khan and Bibek Debroy, IntellectualProperty Rights Beyond 2005: An Indian
Perspective on the Debate on IPR Protection and the WTO (DC School Press; Kottayam,
India; 2004), p 142.
6 See Khaw Lake Tee, Copyright Law in Malaysia (Butterworths Asia, Kuala Lumpur,
65 See Christoph Antons, 'Indonesian Copyright Law after TRIPs: between Dutch
Tradition and Anglo-American Influences' in Jan JC Kabel and Gerard JHM Mom (eds),
Intellectual Property and Information Law: Essays in Honour of Herman Cohen Jehoram
(Kluwer Law International, The Hague, 1998), pp 79-86, 79.
6 See Drahos, op cit note 61, p 164.
67 See Enrico B Astudillo, 'Intellectual Property Regime of the Philippines' in Arthur
Wineburg (ed), Intellectual Property Protection in Asia (Lexis Law Publishing;
Charlottesville, Virginia; 1999); cited in ibid.
68 Drahos, op cit note 61, p 164. Interestingly, South Korea was actually
one of the first
countries to have its intellectual property laws targeted under US trade laws in the 1980s.
See Susan K Sell, 'Intellectual Property Protection and Antitrust in the Developing
World: Crisis, Coercion, and Choice', 49(2) International Organization 315-349, 321
69 See Khan and Debroy, op cit note 63, p 116.

Copyright Convention,7 0 most of the former colonies were automatically

bound by the major intellectual property treaties once the treaty was ratified
by the colonial power To illustrate, the Berne Convention came into force
in 1887.72 Four major colonial powers ratified the Convention in that year:
France, Germany, Spain, and the UK Significantly, the territories, colonies, and
protectorates of each of these colonial powers were included in their accession to
the Convention.
It is interesting to note that by the time many of the colonies became
independent post-colonial states they were already part of a system that was
created and controlled by the colonial powers. As Lazar suggests, when 11 Sub-
Saharan states joined the Berne Convention, they were 'so totally dependent
economically and culturally upon France (and Belgium) and so inexperienced
in copyright matters that their adherence was, in effect, politically dictated
by the 'mother country' during the aftermath of reaching independence.'
English copyright law also continued to apply in India even 10 years after
independence.7 Interestingly, and perhaps due to their psychological dependence
on the 'mother country', most of the postcolonial nations acceded to the
international intellectual property treaties after independence in their capacity as
sovereign states, even though these treaties were notoriously unpopular amongst
the South as being heavily biased towards intellectual property owners - ie, the
Western nations.

7 The Universal Copyright Convention (UCC) of 6 September 1952 (revised in Paris on

24 July 1971), together with the Berne Convention, are the two primary international
instruments for international copyright protection. The UCC is administered by the
United Nations Economic and Social Council (UNESCO). For further information, see
the Universal Copyright Convention, available online at:
laws/copyright/html-eng/pagel.shtml (retrieved 23 August 2004).
Ruth L Gana, 'Has Creativity Died in the Third World? Some Implications of the
internationalization of Intellectual Property', 24 DenverJournalofInternationalLaw and
Policy 109-144, 124 at n 65 (1995).
'2 For a detailed history of the Berne Convention, see S Ricketson, 7e Berne Convention
for the Protection ofLiterary and Artistic Workr: 1886-1986 (Centre for Commercial Law
Studies, London, 1987). The Berne Convention is also available online, see: http://www. (retrieved 14 October 2007).
7 For example, Butalia states that 'India's first entry into the world of international
copyright was as a dominion of Britain'. See Urvashi Butalia, "The Issues at Stake: an
Indian Perspective on Copyright' in Altbach (ed), op cit note 62, pp 49-71, 53.
74 Alan H Lazar, 'Developing Countries and Authors' Rights in International Copyright',
Vol 19, Copyright Law Symposium, (Columbia University Press, New York and London,
1971) p 14; cited in Drahos, op cit note 61, p 165.
1 See Khan and Debroy, op cit note 63, p 142.
76 Gana, op cit note 71.

During the era of decolonisation after the Second World War, several
formerly colonised nations reviewed the intellectual property systems that had
been left to them by their former colonial powers. For example, India's patent
system was reviewed after independence;7 7 and in the 1970s Brazil, Argentina,
Mexico, and the Andean Pact also re-evaluated their patent laws." Several of
these postcolonial nations subsequently passed laws which resulted in weaker
patent regimes.7 1 Part of the decolonisation process also involved postcolonial
nations critiquing the Westcentric focus of major treaties, such as the Paris
Convention (1883) and Berne Convention (1886), and although reform was
sought in both the international copyright" and patent regimes," they were
largely unsuccessful. More recently, there has been intense criticism of the TRIPS
Agreement as a neo-colonial instrument heavily biased towards the intellectual
property owners, or Western nations.8 2 As products of Western legal cultures,
these international treaties have (not surprisingly) championed Western legal
norms as the acceptable standard for the rest of the world. Nevertheless, it is
important to remain conscious of the epistemological foundations underpinning
intellectual property as discourse, and remind ourselves that its 'story' has not
been constructed from a neutral place.

Two expert committees reviewed India's patent laws, and concluded that they had
failed to 'stimulate inventions among Indians and to encourage the development and
exploitation of new inventions'. It is interesting to note that India did not choose to
discard patent law as a regulatory tool, but instead chose to reconstruct its patent laws
to suit its own national postcolonial circumstances. India's new patent law was passed in
1970. The Act did not permit the patenting of substances used as food or medicine, or
substances produced by chemical processes. See Khan and Debroy, op citnote 63, pp 116-
117. Vandana Shiva suggests that one of India's greatest achievements since independence
was the patent law, as human welfare and development goals (particularly in the areas of
food and health) took precedence over profits; cited in Madeleine Bunting, 'Intellectual
Property Rights: the New Colonialism', The Guardian (London), 13 February 2001,
available online:
(retrieved 10 August 2004).
' Drahos, op cit note 61, p 165.
79 Ibid.
80 See Alan Story, 'Don't Ignore Copyright, the 'Sleeping Giant' on the TRIPS and
International Educational Agenda' in Drahos and Mayne (eds), op cit note 35, pp 125-
143, 137-138.
See Duncan Matthews, GlobalisingIntellectual Property Rights: the TRIPs Agreement
(Routledge, London and New York, 2002), pp 11-12; Drahos, op cit note 61, p 166;
Gary Lea, 'Digital Millennium or Digital Dominion? The effect of IPRs in Software on
Developing Countries' in Drahos and Mayne (eds), ibid, pp 144-158, 150.
82 See, eg, Drahos and Mayne, op cit note 35.

5. Irreconcilable World Views and Claims over Culture

The inappropriateness of superimposing Western intellectual property systems
on the other can perhaps most starkly be seen in relation to indigenous 3 groups
residing within the West. Indeed, it is now widely acknowledged that at least on
a very general level, Indigenous worldviews on 'ownership', 'propertv and 'culture'
are fundamentally different to those held in Western industrial postmodern
societies. The cultural values which underlie Western concepts such as 'intellectual
property' are not only fundamentally different to indigenous understandings,
it is often difficult to find cultural equivalents of such concepts in indigenous
While it is important to acknowledge from the outset that there is no
homogenous 'indigenous viewpoint', the Western legal system's insistence on
the rigid demarcation between ideas and expressions, oral traditions and written
forms, intangible works and cultural objects, personal property and real property
are generally foreign to indigenous perspectives. As Coombe asserts:
The law rips asunder what First Nations people view as integrally related,
freezing into categories what Native peoples find flowing in relationships that
do not separate texts from ongoing creative production, or ongoing creativity
from social relationships, or social relationships from people's relationship to
an ecological landsca e that binds past and future generations in relations of
spiritual significance.
Amanda Pask also suggests that indigenous peoples are often confronted with
a legal system which is hostile to their worldviews, and affords them little space
to make any claims:

At every level the claims of aboriginal peoples to cultural rights fall outside
the parameters of Western legal discourse. As neither state actors, nor
individuals, their claims can be heard neither in the international regimes
governing cultural property, nor in the domestic regimes governing
intellectual property.

8 By the term 'indigenous' I mean the disparate cultures in the West who share a historical,
pre-colonial (or 'pre-invasion') continuity with the land, and consider themselves
as distinct from the other dominant cultural groups which arrived as a result of
* Coombe, op cit note 1, p 229.
* Amanda Pask, 'Cultural appropriation and the law: an analysis of the legal regimes
concerning culture', 8 IntellectualPropertyJournal57-86, 64 (1993).

On this point, Gana argues that those societies whose intellectual and creative
endeavours have not been formed around Gutenberg's press, nor restricted
to the printed expression, completely fall outside the domain of copyright.
Significantly, the notion that knowledge is 'owned' as a commodity is also a
thoroughly Western idea, as opposed to a universal one. As Vaver suggests,
'Western capitalist societies are highly property-oriented' where entrenched
ideas of ownership and property affect all areas of civil society." Indeed, what
has generally become apparent around the globe is the inadequacy of Western
intellectual property regimes to 'fit' within indigenous understandings of
intangible property. However, given that the laws of a society essentially reflect
its underlying values, this is hardly surprising. As Shelley Wright asserts, as ideas
about culture and property in the West are 'thoroughly Eurocentric', they are
'therefore, almost certainly inappropriate in most Aboriginal cultural contexts'.
Richard Handler suggests that in the West, the rationale of possessive
individualism - which was initially formulated in Locke's labor theory of value
on the connection between the individual to property - increasingly dictates
the language and philosophy of legal claims to cultural property and political
claims to cultural autonomy." However, it is clear that indigenous concepts
of ownership and property are far wider than the exclusivity of the possessive
individualism of traditional European categories. Loretta Todd suggests that
indigenous concepts of property recognise the interdependence of communities,
families and nations.90 Moreover, indigenous groups and individuals 'created
songs, dances, rituals, objects, and stories that were considered to be property,
but not property as understood by the Europeans'. 9 ' In the Australian context,

86 Gana, op cit note 71, p 1 2 8 .

87 Vaver, op cit note 39, p 128.
8 Shelley Wright, 'Intellectual Property and the 'Imaginary Aboriginal' in Bird, Martin and
Nielsen (eds), Majah: Indigenous Peoples and the Law (Federation Press, Sydney, 1996)
pp 129-151, 131.
' Richard Handler, 'On Having A Culture: Nationalism and the Preservation of Quebec's
Patrimoine' in George Stocking (ed), Objects and others:Essays on Museums and Material
Culture (University of Wisconsin Press, Madison USA, 1985), pp 192-217, 210, 214-
90 Loretta Todd, 'Notes on Appropriation', 16 Parallelogramme24, 26 (1990).
91 Ibid. In his classic 1962 study, Harold Driver also found that intangible property
(such as songs, dances, and formulas) were recognised by all Indigenous American
groups. Furthermore, the type of property recognised included the right to participate
in ceremonies, the right to perform a dance, and the right to wear certain insignia.
Specialised knowledge and processes' (such as herbal medicines) were also taught and
protected' by native doctors. See Harold E Driver, The Indians ofNorth America, 1962,
pp 219, 263-264; cited in Gana, op cit note 71 above), p 131.

studies have shown that traditional artworks in Aboriginal societies are

inseparable from the community and its land.1
While several scholars have outlined some of the key differences between
indigenous and non-indigenous world views on intangible property; Gana
provides a useful summary of the issue and identifies five major themes which
essentially explain these divergent positions.' First, the form of property
ownership in indigenous and non-indigenous societies is fundamentally
different. Unlike most Western societies, indigenous cultures are generally
organised around clans or extended family units, as opposed to individuals. k
However, property in most Western societies consists of a bundle of rights,
which is possessed by an individualowner. These rights in property include the
right to absolute possession, the right to dispose of the property, and the right to
exclude others from use (which is perhaps the most important of these rights).
According to Gana, this 'absolutist conception of property in Anglo-American
law was transferred wholesale into the domain of intellectual goods.'" Second,

See, eg, Kimberlee Weatherall, 'Culture, Autonomy and Djukbinyamurr-Individual

Community in the Construction of Rights to Traditional Designs', 64 The Modern Law
Review 215-242 (2001); Terri Janke and Robynne Quiggin, 'Indigenous Cultural and
Intellectual Property and Customary Law', Aboriginal Customary Laws: BackgroundPaper
12 (Law Reform Commission of Western Australia, Perth, 2006) 451-506; Terri Janke,
Our Culture Our Future:Report on AustralianIndigenous CulturalandIntellectualProperty
Rights (Michael Frankel & Co, Sydney, 1998); Kamal Puri, 'Cultural Ownership and
Intellectual Property Rights Post-Mabo: Putting Ideas into Action', 9 IntellectualProperty
journal 293-347 (1995); Stephen Gray, 'Wheeling, Dealing and Deconstruction:
Aboriginal Art and the Land Post-Mabo (with a 'Response' by Colin Golvan)', 3(63)
AboriginalLaw Bulletin 10-12 (August 1993).
9 See Ibid.
9 Gana, op cit note 71, pp 132-137
9 Ibid pp 132-133.
Driver's study illustrates that among the Mesa-Indians of North America, rights in
intangible goods (and also other goods) included the right to be recognised as 'owner',
but not the right to exclude others from use. Furthermore, even where individual
ownership was permissible within certain indigenous American tribes, Driver suggests
that such ownership was limited to specific categories of goods. For example, along the
northwestern coast of North America, indigenous groups recognised exclusive private
ownership rights for fishing, plant gathering, and trapping. Within this group, an 'owner
in title' was recognised, however refusal to prevent other members of the tribe from
using the product was not permitted. Driver states that in some indigenous American
tribes, exclusive 'ownership' rights could be earned, such as the right to participate in a
traditional ceremony: Driver, op cit note 91, pp 221, 251, 263, cited in Gana, op cit note
71, pp 132-133. Gana suggests further that another feature of 'ownership' of intangible
property among some Indigenous American groups is that customary laws often restrict
the right to dispose of the good (at 133).
98 Gana, ibid, p 132.

the purpose of intellectual property protection is fundamentally different.9 9

While the underlying philosophy of Western intellectual property regimes is
to encourage creative endeavour, protection is used in indigenous societies
to achieve a range of different social, political and economic goals, such as to
preserve cultural patrimony or the sanctity of an object, idea or process.ioo
Third, the theory of creation or creativity is fundamentally different between
Western societies and indigenous communities, and this dissimilarity impacts
upon the right to specific intellectual property goods.' For example, under
some forms of indigenous law, the right to produce paintings (or other works)
depicting creation stories resides exclusively with the traditional owners.' 0 2
Fourth, in several indigenous cultures, the value ascribed to creative expression
is communally held by the group as a whole. 0 3 Moreover, this 'value' is usually
not judged in material terms, which again reflects the non-commodifiable
ethos of several indigenous communities.'o4 Finally, Gana suggests that as the
organisation of these societies are so different, the concept of what is even
appropriate for private ownership is in many ways irreconcilable.' 5 Indeed, the
forms of ownership in indigenous communities are in many ways contrary to
Western legal and economic constructions of property and ownership.'0o
As noted in the introduction to this section, the 'Western-ness' of intellectual
property law can perhaps most dramatically be seen when juxtaposed against
indigenous understandings of 'culture' and property'. Given that the indigenous
other continues to be starkly constructed in terms of what the Western legal
subject is not, it is particularly important to acknowledge the realities which
existed before indigenous peoples were positioned as 'other' and Western
intellectual property systems positioned as 'law'. The fact that most indigenous
communities in the world today continue to live in conditions of chronic
disadvantage makes this acknowledgement all the more critical.

" Ibid pp 133-135.

00 Ibid pp 133-134.
o' Ibid p 135.
102 Ibid.
103 Ibid pp 135-136.
104 Interestingly, in some instances, courts have demonstrated
a willingness to recognise
the cultural and personal distress caused by intellectual property infringement to the
community. For example, this harm to the community was recognised by an Australian
court in the case of Milpurrurruv Indofurn Pty Ltd (1994) 130 ALR 659.
0o Gana, op cit note 71, pp 136-137.
16 Ibid p

6. Conclusion
The purpose of this article was to discuss the concept of intellectual property
as essentially a Western idea, and to excavate its Eurocentric (as opposed to
universal) foundations. Too often, the law in this area is presented as some kind
of collective human experience when its core values are actually strongly based
in Western ideological traditions. As discussed, the established view in Anglo-
American jurisprudence has been that intellectual property laws are a necessary
prerequisite for producing intellectual products. However, the principles
underlying this stem from Western capitalist notions of property, ownership, and
commodification - and, indeed, are far from global values. Significantly, these
Western capitalist principles have now been linked on an international scale to
economic development, growth, and prosperity.
Ultimately, this article presents itself as simply an act of criticism, a
disapproval, an interpellation, a gentle reminder, as the law in this area has
taken for granted some primary categories and presumptions, the foundations
of which are unquestioned and indeed, which through colonialism have now
gained the status of eternal truths. I hope that this critical reading of intellectual
property law will provoke a certain wariness toward generalisations which
transcend the boundaries of culture and region, and by doing so encourage a
reconceptualisation of intellectual properties.