Taylor and Francis Ipr

Moments in Law: Contestation and Settlement in the History of Intellectual Property
Author(s): Susan Sell and Christopher May

Source: Review of International Political Economy , Autumn, 2001, Vol. 8, No. 3
(Autumn, 2001), pp. 467-500
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Review of International Political Economy 8:3 Autumn 2001: 467-500
Moments in law: contestation

and settlement in the history of
intellectual property
Susan Sell and Christopher May

George Washington University, Washington DC, USA and University
of the West of England, Bristol, UK
ABSTRACT
Intellectual Property Rights (IPRs) are increasingly recognized as the key

economic resource of the future. This has led to considerable discussion
of the Trade Related Aspects of Intellectual Property Rights (TRIPs) agree-
ment which was brokered during the Uruguay Round of trade negotiations.
In this article we present an analysis of a number of key 'moments' in the
history of IPRs which eventually led to this particular agreement. We utilize
a 'triangulation' between technological history, legal institutional develop-
ments and the changes in the understanding of what it means to own
ideas to explore the long history of IPRs. Our explicit aim is to establish
that the settlement codified in the TRIPs agreement is not the final 'improve-
ment' to legislation governing IPRs or the cumulation of a history of legal
rationalization. Rather, the TRIPs agreement is based on a particular
constellation of political power and as such remains contested and open
to amendment through political engagement.
KEYWORDS
Critical theory; ideas of ownership; legal institutions; intellectual property

rights; technology; TRIPs agreement.
In the last 20 years intellectual property has become one of the key areas
of conflict in the global political economy. Conflicts have ranged from
those in the international negotiating forums that produced the Trade-
Related Aspects of Intellectual Property Rights agreement (TRIPs) during
the Uruguay Round to disputes over genetically modified seeds being
'pirated' or 'stolen' through re-use by farmers, from fears of piracy of
music over the Internet to questions regarding the ownership of the
information that makes up our knowledge of the human genome. It is
Review of International Political Economy

ISSN 0969-2290 print/ISSN 1466-4526 online ? 2001 Taylor & Francis Ltd
http: / /www.tandf.co.uk
DOI: 10.1080/09692290110055849
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REVIEW OF INTERNATIONAL POLITICAL ECONOMY
now commonly accepted that intellectual property rights (IPRs) are the
key economic resources of the future, but their very definition, scope
and legitimacy remain uncertain. This is hardly surprising as there has
been a recurrent tension throughout the history of intellectual property
between protection/exclusion and dissemination/competition. While
TRIPs appears to be the final triumph of the protection/exclusion posi-
tion, replete with attendant private rent-seeking and monopoly
implications, our analysis suggests that contestation could lead to a move
back from this extreme position.
Essentially the history of intellectual property has been a competition
between two different characterizations of the legitimate ownership of
knowledge. On one hand is the belief that individuals should benefit
from their intellectual endeavours, but on the other is the notion that
these endeavours have such extensive public worth that there is a clear
social interest in their free dissemination. Therefore in one sense this
history has been a contest between monopoly power or private rights
(limiting public access) and the public-regarding intent to free the flow
of information (at the cost of the rights of the individual intellectual
creator). In this article we offer a framework which can inform a crit-
ical account of the rise of intellectual property, linking its rise to material,
institutional and ideational changes in the global political economy. The
significant material capabilities are those controlled through informa-
tional resources (including information-related technologies and
innovations defined as intellectual property). The institution is the legal
construction of intellectual property, while the ideas are those which
identify what is considered to be intellectual property and who has the
right to claim ownership of intellectual goods.
The development of intellectual property law has been a contested
political process producing successive phases of settlement or institu-
tionalization. Each settlement alters the rules of the game, constitutes
new actors, alters opportunities for others and thereby redefines the
winners and losers. Each settlement results in a new focal point for
debate and dispute. The shifting conceptions of intellectual property and
the pressures of technological change drive this process. Furthermore,
given the distributional consequences of the ability to own (and control,
even temporarily) technological innovations, intellectual property
frequently has been an instrument of power and, once captured, the
basis of further accumulation of power. But, unlike the power that comes
from the control of scarce material resources, the holders of intellectual
property have had to construct the scarcity of this property through legal
instruments (May, 1998: 69-70). The very process of defining what consti-
tutes intellectual property effectively reinforces 'particular perspectives
that may benefit some at the expense of others' (Cutler et al., 1999: 347),
rendering some things as property while others remain 'freely' available.'
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SELL AND MAY: CONTESTATION AND SETTLEMENT
The development of intellectual property legislation, firstly at the

national and then at the international level, has been subject to the
continued mobilization of interest to establish and reinforce positions of
advantage. Our interest in this issue is rooted in our previous recogni-
tion of the TRIPs agreement's mobilisation of interest to produce a
particular contemporary globalized settlement.2 We regarded this settle-
ment as neither inevitable nor without alternatives. Thus, our intention
in exploring the hitherto obscure global history of intellectual property
is to begin to identify the grounds on which alternatives can be estab-
lished. Indeed, restricting one's analysis to the past 20 years or so suggests
an inexorable expansion of property rights in intellectual goods, while
looking at the TRIPs agreement alone would reinforce such a conclu-
sion. However, the historical picture is much more nuanced and reveals
a recurrent tension which has not always been resolved in favour of
property holders. Even in the US, the most aggressive champion of
expanded IPRs today, the public-regarding conception held sway in
patent law for most of the twentieth century. We explore this tension
through history by examining a number of 'swings of the pendulum'
between public regarding approaches and private protection. This reveals
the fundamentally political nature of the evolution of intellectual prop-
erty regulation, and ultimately seeks to provoke some historically based
reflection on alternative possibilities for the future.
To establish this perspective on the history of intellectual property we
briefly outline the limits of other perspectives for apprehending the
evolution of intellectual property law, before introducing our critical
framework. In the rest of this article we offer examples of some impor-
tant 'moments in law', which is to say specific settlements or
institutionalizations. We briefly examine the often ignored pre-history
of intellectual property, we then discuss some of the stages which are
generally represented as crucial to the legal history of IPRs, and conclude
our historical discussion with the context of the American push for TRIPs.
We have chosen moments that are particularly pivotal, though space
precludes a comprehensive treatment of the whole history of intellec-
tual property. Nevertheless, each moment reflects a crucial stage of the
development of intellectual property. While there are other moments
that we could have chosen, these are critical moments: our approach
must help us understand these moments if it is to have any utility in
further explorations of this history.
REALIST, FUNCTIONAL AND CRITICAL

PERSPECTIVES ON INTELLECTUAL PROPERTY
We locate our approach to the history of intellectual property within a

critical framework, distinguishing it from what Robert Cox has referred
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to as problem-solving approaches. In particular, we present our account

as an alternative to both functionalist and realist treatments of such a
history. We seek to demonstrate the utility of a critical perspective, which
unlike Realism, is agnostic about the primary actors and can suggest
links between the micro and macro levels. Realism provides limited
leverage in the intellectual property context as private actors, rather than
states, have frequently prompted changes in intellectual property protec-
tion.3 Thus while Realism takes power seriously it suffers from its statist
(institutionalist) orientation, treating the state as a broadly unitary actor
with well-defined interests. As we relate the international history of intel-
lectual property law this is an assumption that obstructs rather than aids
analysis. If Realism as an approach to the development of intellectual
property law would require a limited focus on the state as legislator,
functionalism assumes that the forces and interests that play out in
contest over intellectual property have produced a series of 'rational'
settlements or 'improvements' which reflected the political economic
context of the time. Again, this limits the discussion of specific moments
and fails to reveal the full import of actors' impact on the processes of
settlement and contestation.
Both realism and functionalism provide undifferentiated macro
analyses that obscure significant variation; their explanations are indeter-
minate regarding particular settlements. Realism fails to allow for the
recognition of emergent groups (empowered through new technologies)
who have pushed for new legal arrangements. Functionalism does not
recognize that the emergent settlements represent the ability of powerful
actors and groups to enhance their interest at the expense of others. In
our discussion of particular settlements we stress that history is not linear
but driven by contestation.
The history of intellectual property protection reveals a process that
has vacillated between dissemination and exclusion. Settlements along
this spectrum at any given point in time have resulted from the complex
interplay of ideational, institutional and material forces, not only from
the state as legislative authority, nor from the singular fulfilment of social
functionality. Crucially, this suggests that no settlement is final, including
the current settlement encapsulated in the TRIPs agreement. Not only
does intellectual property remain contested but contemporary pressures
toward a re-inscription of public-regarding dissemination in intellectual
property law are not bound to fail.
The historical section that follows suggests much that a Realist
approach to the international history of intellectual property would miss,
unable to accord central importance to the various non-state actors who
have played a major role in this history. Intellectual property as an insti-
tution, while legally dependent on the state for its formal enactment,
has been developed through considerable non-state activity. However,
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in the past this history has been presented in functionalist te

much as intellectual property can be linked to the historical
of general property rights. At first it might seem that func
ries of property rights offer promise for apprehending the evolution of
the regulatory institution of intellectual property protection. Yet these
theories beg the question of what constitutes efficiency, and ignore the
issue of who defines it: efficiency for what, and for whom?
Functionalist histories of property suggest that property rights are
established to promote efficiency in socio-economic relations. Many func-
tional histories are based on the supposition that the institution of
property emerged to respond to the need for clear signalling in market
relations.4 Thus, as conflicts arose over scarce resources, the costs of such
conflicts outweighed the costs of establishing (and policing) some sort
of property regime. With shared rules of property social actors may
dispense with the duplication of effort required to constantly re-negotiate
bilateral co-ordination. In such accounts, therefore, the emergence of
property serves a particular function: the efficient co-ordination of
economic activities. Property rights are institutionalized to provide
predictability in economic relations carried out at a distance, where
community norms of trust cannot be relied on and where protection by
force is impracticable (due to its costs or the multiplicity of transactions
that might need to be enforced at any one time by any particular trans-
actor).
Since all activities have costs and benefits attached to them, an impor-
tant issue for a functionalist approach to property rights is the
internalization of external costs and benefits. Property seeks to attach
those costs and benefits to the 'owner' of the property that produces
them, relative to the non-owner (Demsetz, 1967: 348-50). Part of the
continuing fluidity in the legal constitution of property rights has been
the widespread attempt by 'owners' to secure benefits while keeping
costs externalized. Social efficiency might best be served by costs accruing
to the property that delivers the benefit; but for individual owners it is
more 'efficient' to have the costs met by others. However, social dynamics
are more ambiguous than serving a single end (such as social efficiency)
that can be achieved in a particular and efficient manner. Furthermore,
power manifests itself by constituting whose definition of efficiency is
the guiding one and whose benefits are guarded or even expanded.
In the context of intellectual property, the efficient solution for society
may be the public-regarding approach of dissemination and competi-
tion; yet the efficient solution for an 'owner' is likely to be protection,
exclusion and the opportunity for private gain. Although efficiency may
be valued in economic transactions it is only one, and not necessarily
the most important aspect to the emergence of property as a social insti-
tution. In abstract terms we may explain property rights in terms of
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gains from co-ordination and co-operation. However, in the actual history

of social relations particular property institutions emerged from much
more diverse circumstances, including the exercise of economic power,
the impact of technological change, and shifts in ideas about who could
own what.
Property over its history has moved from a common understanding
of property as physical things held for the owner's use to the more
modern conception of property as assets, which can be used or other-
wise sold to another potential user. However, while this
transition was hardly noticeable as long as the merchant, the master,

the labourer, were combined under small units of ownership, [it]
becomes distinct when all opportunities are occupied and business
is conducted by corporations on a credit system which consolidates
property under the control of absentee owners. Then the power of
property per se, distinguished from the power residing in personal
faculties or special grants of sovereignty, comes into prominence.
... When to this is added the pressure of population and the
increasing demand for limited supplies of mineral and metal
resources, of water-powers, of lands situated at centres of popula-
tion, then the mere holding of property becomes a power to
withhold, far beyond that which either the labourer has over his
labour or the investor has over his savings, and beyond anything
known when this power was being perfected by the early common
law or early business law.
(Commons, 1959 [1924]: 53)
This move from holding to withholding, the ability to restrict use, is of

crucial importance for our history of intellectual property. When the
resources required for social existence are scarce then the distribution
of the rights to their use (property rights) becomes a central, if not the
central issue of political economy (Burch, 1998). However, for intellec-
tual property such scarcity is neither uncontested nor self-evident: the
role of intellectual property is to construct such scarcity in the realm of
knowledge and to make it legitimate.
To take but one example, the history of steam-driven industrialization
might have been very different without Britain's early form of intellec-
tual property in the eighteenth century. When James Watt, innovator
and creator of the steam engine, was awarded a patent for his inven-
tion in 1769, this did not encourage its widespread and immediate
dissemination. Six years later the British Parliament renewed his patent
for an additional 25 years during which time Watt continued to refuse
to license his invention. By doing so he may have 'held back the develop-
ment of the metalworking industry for over a generation. Had his
monopoly expired in 1783, England would have had railways much
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sooner' (Renouard, 1987). The imposed scarcity of this particular inno-

vation halted its dissemination, and ossified its development until others
could build upon Watt's original insights. The public benefit may have
been served by 'encouraging' Watt's innovation in the first place (though
it is difficult to argue that Watt would not have invented the steam
engine had he been unable to patent it). Yet the social benefit of swift
use/deployment of such an innovation was certainly not served.5
In light of such tendencies, below we present selected turning points
in the development of the institution of intellectual property to illumin-
ate the persistent tension between those who seek to privately
appropriate property in intellectual goods and those who seek its dissem-
ination. However, though we focus on the legal construction of
intellectual property, we reject the notion of law having an existence
separate from its political, social and economic context. Law both consti-
tutes and is constituted by social, political and economic struggles (Hunt,
1993). Equally, we reject teleological and deterministic interpretations of
legal developments.
We aim to historicize intellectual property, to reveal its historical
construction and specifically to deny that it is a transhistorical concept.6
Intellectual property has a contested history which suggests why many
of its current problems remain unsettled. This historical perspective on
the controversies emergent in the wake of the TRIPs agreement, reminds
us that the current globalized settlement is not the end of the story.
While intellectual property is not a singular legal concept, stretching
from trademarks, to patents, from copyrights to industrial designs,
certain elements are common to all: the construction of scarcity, temporal
limitations, and the individualization of knowledge creation. Thus while
below we frequently move between copyrights and patents, the overall
notion of the possibility of intellectual property is tied up in these
(formally separate) histories. Though intellectual property is more
diverse than our discussion here can encompass, equally our approach
is based on the central tenets of all intellectual property and thus we
suggest that the overall regulation of intellectual property can be usefully
analysed utilizing the method we deploy.
In the following historical account, we present the evolution of intel-
lectual property law as a product of the interaction between ideas,
material capabilities and institutions. Specifically, we examine the polit-
ical conception of the role of the knowledge creator (ideas), the character
of technologies using intellectual property or subject to its protection
(material capabilities), and the legal construction of intellectual property
(institutions). We refer to this process of interaction as 'triangulation'.
This highlights the contingency and historical circumstances that lead to
the constructions of scarcity. We seek to provide a critical historical
account, therefore, that 'does not take institutions and social power
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relations for granted but calls them into question by conce

with their origins and how and whether they might be in the process
of change' (Cox, 1996: 88-90).
While it is beyond the scope of a single article to fully develop a
dynamic historical explanation of the long history of intellectual prop-
erty, our intention is to problematize the functionalist and teleological
assumptions that underlie much which has been written regarding the
current settlement as encapsulated in the TRIPs agreement. The current
settlement is neither fixed nor final and our history demonstrates that
alternative approaches are both available and plausible.
SOME MOMENTS IN THE HISTORY

OF INTELLECTUAL PROPERTY
The progression of intellectual property from one structure of law to

another has been patterned by periods of contestation reflected in the
tensions between private rights of ownership and public circulation of
knowledge. These tensions signalled to the contending parties the poten-
tial for remaking intellectual property law at particular moments, and
as Cox has pointed out, this
developmental potential signifies a possible change of structure. It

can be grasped by understanding the contradictions and sources
of conflict within existing structures; and this task may be aided
by an understanding of how structural transformations have come
about in the past. Thus the determination of breaking points
between successive structures - those points at which transforma-
tions take place - becomes a major problem of method.
(Cox, 1996: 54)
This has led us to identify the developments within the institution of

intellectual property as our central problem, and to regard these 'breaking
points' as moments when the historical trajectory of intellectual prop-
erty was under-determined by its past.
The potential for restructuring the institution of intellectual property
is foregrounded by technological change and shifts in the usage of law.
Furthermore, any settlement itself may put other aspects of intellectual
property 'into play', either by allowing scope for contestation of previous
settled practices or by its necessary privileging of one set of interests
over others. Institutional settlements that emerge can be quickly compro-
mised through the complexities of use and the contested character of
intellectual property itself. While we have identified some of these
moments below, in themselves these 'breaking points' may also reveal
thresholds of technological and political change, any particular moment
may be complex and multi-temporal. The recognition of this continued
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dialectical move from institutional settlement to contestation and dispute,

and the re-imposition of settlement, underlies the progression from rela-
tively undifferentiated (intellectual) property laws to the complex of
complementary laws we recognize today, globalized in the form of the
TRIPs agreement. Indeed 'refinement' of the law of intellectual property
has led to a complex and variable set of institutional elements, ensuring
that in the contemporary global political economy of intellectual prop-
erty there is no single realm of uncontested and firm rules.
Pre-legislative 'ownership' of ideas
Before moving to the generally mapped history of intellectual property

it is as well to briefly lay out the triangulation between technical change,
ideas of knowledge and legal institutions that preceded the formal insti-
tutionalisation of patents or copyrights. The history of trademarks can
be traced back to the legal protection of makers' marks in Roman law
(Paster, 1969). Craft guilds also recognized the value of their craft know-
ledge and made considerable efforts to control (and limit) its availability
within the membership of the guild. By the fifteenth century many guilds
had already developed a proprietary view of their knowledge resources
(both marks and skills). Indeed Pamela Long argues that it is 'clear that
within medieval cities the attitude developed that craft processes consti-
tuted intangible property with commercial value subject to conditions
of ownership' (Long, 1991: 875). Though the guilds never called it intellec-
tual property, their assertion that they owned the craft knowledge and
practices of their occupation (as well as the right to mark their prod-
ucts) collectively as guild members, exhibits the recognition of value that
could be gained from the establishment of a scarcity of knowledge (in
this case through guild membership). Thus, well before there was a
formal legal definition of intellectual property, there were attempts to
organize the control of valuable knowledge on behalf of various groups
who stood to gain from its exploitation.
New technologies spurred the development of legislative innovations
which coalesced into the beginning of a recognizable body of IPRs.
Patents emerged initially to allow the dissemination of particular tech-
nical advances, which would benefit the ruling groups through wealth
creation. In these initial formulations IPRs emphasized a 'public-regard-
ing' intent to further the encouragement of learning (Aoki, 1996: 1329)
and the development of industry. They were not justified on the basis
of 'natural rights' or the 'moral rights' of the author or inventor. These
justifications would be mobilized only as intellectual property broadened
its range (geographically and by the scope of protection) (see May, 1998).
The strategic, and important technologies of the period, chiefly glass-
blowing and its associated techniques, salt extraction and printing, were
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all subject to some sort of proto-intellectual property provision. In this

sense, the patent originally stemmed from the desire of rulers to secure
new technologies for the enrichment of the territories that they controlled.
Prior to the national legal formalization of intellectual property laws,
patents 'typically took the form of grants for the exclusive exploitation
of locally unfamiliar processes or devices that had been originated else-
where' (David, 1993: 46). Patents were grants of privilege by the
particular sovereign into whose territory such practices were being i
duced. Thus, in 1326:
a policy of encouraging the importation of new arts from abroad

was indicated by the British king. ... The earliest known instance
of a royal grant to foreigners is the letters of protection given to
John Kempe and his company, Flemish weavers, by King Edward
III in 1331 ... [and] an early instance of a grant made to the importer
of an invention is the letters patent granted in 1440 to John Shiedame
to introduce into England a newly-invented process of manufac-
turing salt.
(Federico, 1929: 293)
Technology transfer was at the heart of this desire to establish such

patents, driven by the mercantilist desire to reduce imports and expand
exports (Prager, 1944: 720ff). However, rather than aiming to protect
practices from leaving the territory without due reward, these early
patents were a method for encouraging the migration of artisans
(bringing with them new practices).7 However, it was not necessarily
the state (or court) that drove these developments.
One of the chief methods by which the largely novel Venetian system
of granting patents for inventions spread further afield was through the
migration of Venetian glassblowers:
glass was then so precious that many Venetian artists were tempted
to establish works abroad, and knowing the Venetian patent system,
the first thing they sought in foreign countries was a monopoly for
the new methods they brought with them.
(Frumkin, 1945: 144)
The letter of patent would allow them a limited (though often renew-
able) monopoly with regard to their imported practices in exchange for
the transfer of such technological advances to the letter-granting state
through an obligation to instruct apprentices. While these letters were
not legally constituted, but rather were only enjoyed through the favour
of the sovereign, their genesis lay not with the sovereign but with the
glassblowers themselves.
Whereas the early or pre-legislative history of patents was concerned
with individual practitioners (who could be, though were not
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necessarily, the innovators), the early history of copyright is largely

concerned with material artefacts.8 This was stimulated by technological
developments; following the fifteenth-century invention of cheap
printing, the 'Gutenberg revolution', printing and book selling emerged
as major industries. And once printers were producing books for sale,
they sought some right to restrict copying to ensure that other printers
did not 'pirate' their books. Only by securing a scarcity could a price
enabling a reasonable profit be obtained. Thus, as printing became an
emergent industry with a stream of new entrants (often workers for
established presses who set up on their own to compete with their erst-
while masters, the guild mechanisms in the early stages failing to limit
such activities), competition emerged to produce valued and saleable
texts, which
introduced controversy over new issues involving monopoly and

piracy. Printing forced the legal definition of what belonged in the
public domain. A literary 'Common' became subject to 'enclosure
movements' and possessive individualism began to characterise the
attitude of writers to their work.
(Eisenstein 1980: 120-1 footnote deleted)
While in the half-century immediately after the invention of modern

printing (movable type) in the 1450s, printers were able to profit from
their control of the arcane practice of printing (with its secrets of proce-
dure and practice), because the regional and international dissemination
of printing technology had been so swift, undercutting any attempt to
enact a long term monopoly, effective grants of patent monopolies
covered only the products themselves.
The earliest formal provision for the protection of copyright (like that
for patents) was made in Venice. This formalization was a legislative
response to the previous scramble to secure rights on profitable titles.
Between 1493 when the Venetian Cabinet set a precedent giving Daniele
Barbaro a 10-year exclusive grant to publish a book by his late brother,
and 1517 any title could be the subject of an award of monopoly. This
had led to a rush by printers and publishers to secure profitable titles,
either for immediate publication or so the monopolies could be sold on.
In 1517 the Senate restricted 'privilegi henceforth to new and previously
unprinted works', to reduce the number of claims and counter-claims it
was required to hear. Then, the Council of Ten in Venice, sitting between
1544 and 1545 issued a decree which 'prohibited the printing of any
work unless written permission from the author or his immediate heirs
had been submitted to the Commissioners of the University of Padua'.
However, a continuing problem of 'pirated' editions prompted further
legislative innovation. In 1549 a Council decree finally organized all
Venice's printers and booksellers into a guild, which allowed a full record
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of copyrighted works to be maintained (to police unauthorized

reprinting) and furthermore, a motivation seldom far from the mind of
the authorities at the time, gave the Church some assistance in
suppressing heretical literature (David, 1993: 51-2). Authors now (as for
most of the history of printing) were dependent on the guild to secure
publication of their work through the legal formalization of a protectable
copyrighted text. To gain protection such a text had to pass through the
guild's members. This guild monopoly fitted well with many European
guilds' own perception of their ownership of knowledge.
Therefore, as the practice of printing became better known and less
difficult, power in the printers' guilds slowly started to shift from the
printers to the 'copy holders' who in most cases were the booksellers.
In the case of the London based Guild of Stationers, essentially the British
Crown had subcontracted censorship to the stationers, and had also
(perhaps inadvertently, perhaps purposefully) produced a situation in
which certain members of the book trade were able to garner for them-
selves quite extensive economic benefits by allowing them to control
what could and could not be printed. Thus, the balance of power in the
guild shifted from the printers, to those who decided what books should
be printed and owned the 'copies' (Feather, 1994b: 99). In this instance
the booksellers, the owners of the intangible property effectively wrested
control of the industry from the printers, who merely owned the mate-
rial technology of reproduction.
In the period prior to the formal emergence of intellectual property
laws the triangulation between ideas, technologies and institutions
produced the legal and political context in which the first modern patent
and copyright laws were developed. The attempts to control valuable
knowledge on behalf of various groups who stood to gain from its
exploitation can be see in the emergence of various demands for grants
of monopolies. The precursors to patents, such as grants of privilege,
letters of patent, or less formal 'favours' from the sovereign ruler,
conferred certain groups advantages in newly emergent technologies.
However, these innovations in the legal protection of knowledge reflected
the development of ideas of the worth of such knowledge. This included
both issues of the public-regarding benefit of the dissemination of tech-
nical advances, as well as the legitimate economic rewards accruing to
those controlling such knowledge. The swift recognition that new tech-
nologies like glass and salt manufacture, and printing, were important
or strategic (and thus needed to be obtained urgently) and developed
by discrete groups of artisans, encouraged the recognition of the worth
of this knowledge. And while rulers formally enacted the monopoly
grants, other actors (guilds and migrant artisans especially) were instru-
mental in moving the legislative innovation of intellectual property
forward.
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The national phase
Up until the early seventeenth-century patents, including monopolies

that later would become regarded as copyrights, were awarded by the
state (or Monarch) as privileges or indulgences based on individual
grants. There was no formalized legislative procedure; rather grants were
subject to the vagaries of political power and personal relationships with
the holders of such power. The history of legislative intellectual prop-
erty commences with the formalization of patents in the 1624 Statute of
Monopolies and for copyrights in the Act of Anne in 1709. Though there
had been developments along these lines throughout Europe, conven-
tionally British law is recognized as innovating legislatively in both these
areas. Britain was the first state to establish legislation to govern IPRs,
moving to a systematic manner of granting patents and later copyrights,
rather than on the basis of individual petition. While it is possible to
suggest that technological shifts had prompted the development of legal
institutions related to specific views of the sort of ownership of know-
ledge that might be legitimate or 'efficient', this should not be taken as
the only dynamic affecting the nascent law. While functionalist histories
might emphasize such causes, ideational factors also need to be recog-
nized.
The emergence of the award of patents in Britain, culminating in the
Statute of Monopolies enacted in May 1624 was contentious. The Crown
issued letters of patent for predominantly fiscal reasons. In the main,
Queen Elizabeth issued patents to either support courtiers in financial
difficulty by enabling them to profit from monopolies, or to reward
favourites (in lieu of any other reward for duties undertaken on her
behalf). This led to a large number of disputed or objectionable grants,
made to individuals who were not the inventors nor even specialists in
the particular fields of endeavour, or worse, awarded when the processes
(or derivations) were already well known and at least partly (if not
wholly) in the public sphere. For instance, two 'courtiers who received
a starch monopoly were heavily in debt to the queen and she appar-
ently hoped to reimburse herself by helping them to make money at the
expense of her subjects' (Federico, 1929: 299). And starch was not the
only necessity to fall under the control of court sanctioned monopoly.
Salt, paper, saltpetre and glass all came under the control of the Queen's
favourites (or debtors) causing enormous price rises.
In 1601 Parliament attempted to pass a bill reforming the Crown's
granting of letters of patent in response to considerable public disquiet
regarding the control of processes and trade such monopolies supported.
The Queen's ministers would not have been able to halt legislation in
Parliament written by her opponents in this matter, and thus to retain
some authority she cancelled the worst of the monopolies and allowed
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the remaining grants to be examined by the courts without her restraint.

The reform of the practice introduced a role for the public-regarding
intent of access to and previous availability of particular important tech-
nologies. Indeed, it is from this dispute that the emphasis on novelty in
patents can be traced, disputing the possibility of awarding monopolies
in already common techniques or industries. Thus, while the Queen
retained the ability to issue grants, these became subject to judicial review
and challenge by those aggrieved or their representatives.
Elizabeth's reforms did not outlast her reign however, and similar
problems re-emerged under James I. But in 1621 'a new parliament had
to be called and the House of Commons investigated the abuses under
various patents.... Many of the patents were cancelled by the King and
others left open to be tested in court' (Federico, 1929: 302). And though
the Crown (most especially Charles I) continued to abuse the system to
some extent, the Statute of 1624 codified into law for the first time those
practices in regard to patents that made up common law. The British
invention patent, provided for in the Statute of Monopolies of 1624, was
'plainly devised as an exception, for good economic reason, to the general
campaign against royal monopolies ... those who brought technical ideas
into the Kingdom, even if they were not their ideas, were "inventors"'
(Cornish, 1993: 50 note 10). This notion, that intellectual property was
an exception rather than a general mode of property was to be subject
to considerable modification and, finally, demise in later years.
But, when the monopoly rights that flow from the recognition of prop-
erty in intellectual 'objects' were first recognized, their potential scope
was regarded as a problem rather than a just reward. As owners estab-
lished their general rights at the cost of the public realm, intellectual
property's initial status as an exception (a privilege) shifted to that of
an individual's just dessert (a right). Thus, crucially given the move to
intellectual property rights, in its genesis intellectual property was not a
right but a contingent privilege awarded in respect of specific social
benefits. We will return to this transformation below.
While early patents reflected the desire of rulers to capture new tech-
nologies for their national economies, copyrights arose more as the result
of pressures brought by the industry that was to be governed by them.
The English Stationers' Company adopted the guild monopoly model,
that originated in fourteenth-century Venice and spread throughout
Europe. To allow Mary Tudor's court to suppress publication of sedi-
tious material the Company was
empowered to search the premises of any printer or bookseller for

works not printed in accordance with the licensing laws, and
whether censorship was obnoxious or desirable in their opinion,
they had a strong economic motive to enforce their monopoly by
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suppressing publications not licensed by the Crown ... [and there-

fore] in England, copyrights began with a monopoly franchise
granted for the purpose of regulating the business of printing and
publishing.
(David, 1993: 53)
The individual rights of the author were only incompletely recognized.

Rather monopolies were organized on the basis of content and the control
of the publisher, though in some cases this was linked to the actual
author. With the decline of prior censorship in the late seventeenth
century the Licensing Act, which had supported the Stationers'
monopoly, lapsed in 1694. Combined with the increase in the number
of presses, the next 15 years exposed the Guild of Stationers to unre-
strained competition. Their complaints and petitions finally enabled them
to gain some renewed protection in the Act of Anne in 1709, the first
formalized copyright statute.
In neither case, was the importance of the creating individual given
much weight. Patents could be granted to whomever brought the idea
to the attention of the Court, while copyrights were the result of attempts
by the printers and stationers to secure their rights to publish free from
the competition of others. Indeed, early copyright in England was a
statutory, not a natural, right; it was meant to regulate the production
of copies of literary works and was not designed to confer property
rights on an author (Aoki, 1996: 1327).
While the technological issues remained largely continuous with the
pre-legislative period, the ideas regarding knowledge ownership became
considerably more developed especially regarding technological know-
ledge covered by patents. Here, the public-regarding issue of access and
the curtailment of privilege became key drivers towards the develop-
ment of the legislative innovations which mark the beginning of
intellectual property. Thus in the moment of emergence the limitation
of rights (indeed their formulation as contingent privileges) is central to
the institutionalization of intellectual property. The need to produce a
more formalized intellectual property provision was, as our triangula-
tion reveals, driven by the need to reflect modifications in the emerging
ideas about ownership of knowledge. And such legal developments were
largely dependent on the particular political processes of the English
state. Their emergence reflects the more generalized institutionalization
of state-society relations at this time, a product of political process. Once
these laws had been developed they swiftly became the model for conti-
nental states' laws. In the same way the Venetian innovations were
spread by migration of technically adept artisans, the expansion of the
international trade in technology led to demands for similar types of
legal instruments to encourage manufacture in competing countries. In
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the wake of English legislation similar national laws were enacted across
the European continent.
An emerging multilateralism
Until the end of the nineteenth century, intellectual property protection

covering patents, copyrights and other emergent forms such as trade-
marks and industrial designs was strictly a national matter. States passed
laws of their own design (though largely influenced by the legislative
innovations enacted in English law), but the protection that these laws
provided was domestic and did not extend beyond national borders.
These national laws, however, were instrumental in informing the next
phases of intellectual property protection and, perhaps as importantly,
in shaping the modes of reasoning about intellectual property that were
used to both justify and expand such protection. Such reasoning was
rooted in and reflected changes in the more general debates about the
role of property in economic activity (Ryan, 1984). And with tech-
nological innovations around telegraphy, the emergence of an intercon-
nected global knowledge space started to develop in this period even if
only in rather a rudimentary form.
The expansion of international commerce increasingly strained the
national patchwork of intellectual property protection. In copyright, for
instance, British authors and publishers complained of widespread
'piracy' of British books abroad. Reprinting foreign books was perfectly
legal in many other countries; in fact reprinting texts by popular British
authors such as Charles Dickens was a thriving industry in America.
The British book trade recognized this was reducing potential profits
and eliminating major export markets for legitimate British editions
(Feather, 1994a: 154). Paradoxically, the only state that extended protec-
tion to foreign authors was the very state most other European states
regarded as a threat - revolutionary France. Elsewhere, to ensure some
measure of extraterritorial protection, by the early 1800s an extensive
network of bilateral copyright agreements was negotiated throughout
Europe leading to a growing demand for codification in an international
treaty.
By the beginning of the nineteenth century France and America had
also adopted forms of patent protection. While protection of the first
inventor was merely de facto in Britain, based on the ability to file the
patent applications before others, in France and America the 'first
inventor' was protected by law even if a competitor managed to file for
patent protection first. Provided the first inventor could establish priority,
ownership of property rights in the innovation could be claimed. Even
so, patent protection in all three states was effective and during the next
40 years spread to most other important economies in Europe.
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However, during the period 1850-75 a controversy raged between

those seeking to defend the protection of innovation and invention
through the patent system, and those contrasting this protection with
the needs and demands of an international system of free trade. The
main problem was the tension between free trade and its limitation repre-
sented by intellectual property. Thus, on one side of the argument, in
various guises (depending on nationality) were free trade liberals, that
is, those who focused on the monopoly aspect of intellectual property.
Interestingly this included The Economist, in direct contrast to its current
support for TRIPs. Arrayed against them were groups and committees
formed to protect the rights of inventors made up of those who stood
to gain from continued patent legislation (patent lawyers, engineers and
large companies with a vested interest in retaining control of their
patents). However, not all inventors or commercial interests supported
patents, not least of all those who had fallen foul of their enforcement
in the past. Thus, in marked contrast to the contemporary arguments,
those in favour of free global trade regarded IPRs as a privilege that
could not be supported between jurisdictions as it constrained the free
trade in the goods that included claims of intellectual property. Indeed
this political dispute was perhaps the last time a concerted effort would
be undertaken by those who supported free trade to suggest IPRs were
in fact less than legitimate rights.
But through extensive propaganda supporting the rights of the patent
holder versus the infringer and more importantly the decline of support
for free trade itself, the argument for patent protection was won (Machlup
and Penrose, 1950: 4-6). Once free trade came to be seen as less of an
overall benefit, opposition from nationally based groups to the constric-
tion of free trade by patents lost its momentum. Intellectual property
was still seen as a restriction of trade but such restrictions, provided
they served the national interest, were no longer seen as problematic.
In the coming century, even this recognition of some problematic limi-
tation resulting from the granting of these rights would disappear from
mainstream discourse. On the other hand, this period marked the full
development of the discourse justifying IPRs as an acceptable and legit-
imate form of monopoly.
Henceforth, intellectual property usually would be regarded as a direct
reward for intellectual labour (drawing on a Lockean logic of labour
dessert), as part of the inalienable right of individuals to be associated
with their innovations, or perhaps most clearly for reasons of economic
'necessity', to ensure the efficient use of resources (May, 1998). As this
idea of property in knowledge became more widespread so the inter-
national market in products that stemmed from the manipulation and
control of knowledge could be formally organized on the basis of multi-
lateral legal structures. Thus, the establishment of the justification for
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patents is an important moment of settlement. Though tec

only just emerging that would transform the use of knowledge in
economic organization and production, and institutional development
was spasmodic, the increasing solidification of ideas of intellectual prop-
erty centring on the rights of 'owners' was crucial for the next stage of
the globalized development of IPRs legislation. That at the end of the
nineteenth century the rights of owners to own intellectual property,
through the analogy to material property, were largely rendered unprob-
lematic is a key moment in the development of the then only emerging
global IPR structure. The decline of objections to the restriction of
completely free trade cleared the way for a greater co-ordination of cross-
border recognition of patent protection to replace the essentially
territorially delimited provision then current. The complex of bilateral
treaties was replaced by an emergent multilateralism of intellectual prop-
erty conventions with cross-border reach.
In the 1870s, the Austro-Hungarian Empire sought to host inter-
national exhibitions of inventions in Vienna. Prospective exhibitors were
reluctant to participate because they feared that their ideas would be
stolen. German and American inventors were particularly concerned, as
they were widely recognized as among the most innovative (Murphy,
1994: 93). Therefore, in 1873 the Empire adopted a temporary law
providing foreigners protection in order to encourage participation;
protection was to last through the duration of the exhibition. A number
of European countries already had domestic patent systems, and repre-
sentatives met in Vienna in 1873 to discuss prospects for an international
agreement to protect patents building on this temporary arrangement.
Several Congresses were subsequently convened in 1878 and 1880; the
latter adopted a draft convention which became the basis for the 1883
Paris Convention (WIPO, 1988: 49-50). As in the case of copyright, the
overriding objective was to devise a system in which states would recog-
nize and protect the rights of foreigners within their own domestic
borders (Gana, 1995: 137).
States finally responded to the strained national patchwork of intel-
lectual property provisions by adopting two international intellectual
property conventions: The Paris Convention for the Protection of
Industrial Property (covering patents, trademarks, and industrial
designs) in 1883, and The Berne Convention of 1886 (for copyright).9 The
underlying principles of both these international agreements were:
national treatment requiring states to treat an inventor or author who
enters a member state's market no differently than nationals; non-discrim-
ination establishing that there should be no barriers to entry of the foreign
author or inventor in a member state's national market; and the right of
priority to protect the rights holder from subsequent unauthorized use
of the copyrighted work or patented invention or process. Under this
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system, states were free to pass legislation of their own design but signa-
tories were obligated to extend their legislative protection to foreigners
of member states. The territorial basis of IPRs was preserved, albeit
extended beyond jurisdictional confines through the 'contractual device
of treaty-making' (Drahos, 1997b: 202). This system permitted wide vari-
ation in the scope and duration of protection afforded. Many countries
denied patent protection for pharmaceutical products in order to contain
costs of necessary medicines, of which India was perhaps the most
successful example. This was perfectly acceptable under the terms of the
Paris Convention. Indeed before the TRIPs agreement, many practices
that US negotiators decried as 'piracy' were lawful economic activities
under various national legal systems and complied with existing inter-
national intellectual property agreements. States had a broad scope of
autonomy to draft laws that reflected their levels of economic develop-
ment and comparative advantages in either innovation or imitation.
However, as knowledge-based technological innovation and techno-
logical leadership passed from European states to the growing American
economy, more and more technologically leading companies (and
sectors) emerged in North America. Allied to this geographical shift in
the locus of industrial competitiveness, the ideas that informed the regu-
lation and organization of the international political economy were
increasingly driven by the leadership of the American economy. The
hegemony of America (pax Americana) allowed its trade negotiators in
international forums to capitalize on the already extensive agreements
regarding the character of desirable protection for intellectual property
at the domestic level. After the change in perception at the end of the
nineteenth century, support for international free trade was deemed
perfectly compatible with support for strengthened intellectual property
protection. And given the leading role of the US in multilateral economic
regulation after 1945, the state whose laws are the most important in
understanding the immediate historical origins of the TRIPs agreement
are those of the US. It is to this particular characterization of intellec-
tual property law we now turn.
American law and the origins of the global era
Venice and Britain, prominent economic powers in previous eras, estab-

lished widely emulated models of intellectual property protection. The
US in its turn has led the push for the global approach ensconced in
TRIPs. While a hegemonic state may promote a particular conception of
intellectual property protection this can hardly be effective if it goes
against the ideas which shape the acceptability of property in knowl-
edge. In this sense, technological leadership, the previous emergence of
a consensus as regards the protection of intellectual property and the
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ability of the hegemon to construct institutions that reflect contempo-

rary ideas and technologies were all crucial at this stage in the
development of the global settlement in IPRs. Throughout most of the
nineteenth century, America was a net importer of technology. It offered
lax protection for foreigners' intellectual property and built much of its
industrial prowess on British technology in particular. This preference
for weak protection changed in the latter half of the century as American
firms began to achieve technological breakthroughs. American firms,
such as the Edison Company (manufacturing Thomas Edison's incan-
descent carbon filament lamp), pressed for strong intellectual property
protection in the negotiations over the Paris Convention. This strategy
would be strongly echoed over 100 years later in the activities of the
Intellectual Property Committee, an ad hoc advocacy group of leading
US firms, during the negotiations which led to the TRIPs agreement (Sell,
1998; 1999). Owners and manufacturers of innovations saw considerable
advantage in intellectual property's monopolistic potential.
As at previous moments there are a diverse group of interested parties
who suggest to legislative bodies the forms and coverage of intellectual
property that would fit well with their needs. But, while TRIPs embodies
a dramatic expansion of protection and exclusion (at the expense of
dissemination and competition), favouring knowledge 'owners', what is
most surprising is how recently and suddenly this approach arose in
American law itself. Twentieth-century America exemplifies the recur-
rent tension between monopoly privileges and public obligations in
intellectual property law, that emerged in the first institutionalized settle
ment of patent in 1624. Indeed, the following history illustrates that
contemporary US intellectual property policies are neither inevitable nor
are they a coherent whole. The evolution of American law reveals contin-
gency and contestation. Consistent with our critical perspective this
historical context suggests that even in this country that today most
aggressively promotes intellectual property as a system to protect and
exclude, the pendulum has swung back before and may yet again swing
back to favour dissemination and competition. While the first decade of
the century elevated monopoly rights to nearly absurd levels, most of
the rest of the period struck the balance in favour of dissemination and
competition.
The economic power of patents reached its zenith in the laissez-faire
era at the turn of the century. The Supreme Court cemented patent power
in its decision in Henry v. A.B. Dick Company in 1912. The A.B. Dick
Company owned a patent for its mimeograph machine, selling it with
a tag license that required purchasers to buy A. B. Dick's ink, despite
the ink being un-patented. Known as a tying clause, in antitrust terms
this is a form of vertical restraint. The Supreme Court condoned this
practice and held that a patentee 'could extract whatever price or other
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concession he chose as a consideration for granting a patent license,

including the purchase of un-patented articles to be used in conjunction
with a patented machine' (Kastriner, 1991: 6). However, this settlement
regarding patent power was short-lived. The development of American
patent policies subsequently became deeply intertwined with antitrust.10
Only three years after the passage of the Clayton Act of 1914 a new
area of tension emerged. Section three of the Clayton Act expressly
forbade tying clauses, and ushered in the concept of patent misuse. In
1917 the A. B. Dick ruling was reversed by the Supreme Court, and in
Motion Picture v. Universal Film it 'struck down the tying arrangement
between a patented movie projector and the use of un-patented film sold
by the patentee' (Kastriner, 1991: 18). The Court subsequently continued
to strike down tying arrangements as being inconsistent with the over-
riding public policy of promoting free competition. Patent rights were
construed as monopolies and these rights were subordinated to the domi-
nant antitrust policy. This controversy echoed the free trade versus
monopoly privileges battle of 1850-75, although this time the settlement
was reversed by favouring the public-regarding interpretation over
private monopoly interests. As happened in the seventeenth century
over-protection, or extreme monopolization of intellectual property
prompted a reaction. Technologies which emerge taking advantage of
the increased protection become exemplars critics can seize on to demand
a new settlement. The technological enhancement of protection prompts
a rethinking of the amount of benefit an 'owner' of knowledge should
receive.
This anti-patent environment, characterized by vigorous antitrust
enforcement and judicial attacks on the scope and validity of patents,
led American businesses to question the economic value of patent protec-
tion. More often than not the courts presumed patents to be invalid and,
reminiscent of Elizabethan times, patentees were criticized for setting
monopoly prices for inventions that were already in the public domain
(Dreyfuss, 1989: 6). Would-be domestic competitors had little to fear
from infringing behaviour. Thus, in 1976 when Eastman Kodak sought
to develop an instant camera to compete with Polaroid, Kodak's devel-
opment committee issued an internal directive that stated: 'Development
should not be constrained by what an individual feels is potential patent
infringement' (Silverstein, 1991: 307). For patent holders the time was
ripe for a reconsideration of their protection.
The lax US patent environment began to change in 1980 when the
Supreme Court signalled a new attitude toward patents. The recogni-
tion at this time of the emergence of a post-industrial or information
society, both by commentators and economic actors themselves,
suggested that the value to be placed on innovation and knowledge
resources (intellectual property) would likely be greatly enhanced. For
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instance, in its ruling in Dawson v. Rohm and Haas, the Court stated
that 'the policy of free competition runs deep in our law ... but the
policy of stimulating invention that underlies the entire patent system
runs no less deep'. For the first time since the A.B. Dick case, the Supreme
Court placed the public policy of supporting patent rights on an equal
footing with free competition, and 'effectively ended the era of antitrust
dominance over patent law in the eyes of the judiciary' (Kastriner, 1991:
20). The rights of owners of intellectual property started to become more
important as these owners were increasingly likely to deliver economic
development and competitiveness objectives valued by the US govern-
ment. Technological change (in this case the rise and burgeoning ubiquity
of information technology) allied to a politically motivated shift in the
conception of the purposes and character of ownership (the emphasis
on private rights in Reaganomics) again led to a shift in the legislative
settlement around intellectual property.
In 1982 the US created the Court of Appeals for the Federal Circuit
(CAFC), in effect a single 'patent court', to provide clarity and unifor-
mity in the application of patent law.11 Since its establishment the CAFC
has increasingly strengthened the rights of the patent holder, and its
decisions have effectively signalled a shift in public policy that empha-
sizes the enforcement of these particular rights. Thus, in Smith
International v. Hughes Tool (1983) the court ruled that 'public policy
favours "protection of rights secured by valid patents" adding that
"public policy favours the innovator, not the copier"' (Kastriner, 1991:
13-14). This is clearly a far cry from the earlier judicial suspicion of the
monopoly aspects of patent rights.
However, the CAFC perhaps made its greatest mark in its 1986 deci-
sion in Polaroid Corp. v. Eastman Kodak. Polaroid had sued Kodak for
infringing its patents for instant cameras. The US District Court of
Massachusetts found that Kodak had indeed infringed the Polaroid
patents and, relying on the Smith International case, issued an injunc-
tion barring Kodak from further infringement. Kodak protested that this
would force it to lay off 800 workers and cause it to lose its $200 million
investment in the plant (Kastriner, 1991: 14). Regardless, the District
Court awarded Polaroid the injunction. Finding that Kodak's infringe-
ment had been 'wilful and deliberate, the court left open the possibility
of assessing treble damages, costs and attorney's fees totalling more than
$1 billion against Kodak' (Silverstein, 1991: 306). The CAFC affirmed all
aspects of the District Court's decision. As Silverstein points out, 'what
made American business sit up and take notice ... was that the outcome
effectively restored to Polaroid a virtual monopoly over the United States
market in instant photography' (Silverstein, 1991: 307). This case was the
most striking instance of an increasingly pro-patent sentiment in US
courts. It demonstrated that
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a successful patent infringement case can eliminate a competitor

from a business, as well as costing the infringer over a billion dollars
in damages and related costs and signalled to businessmen that
infringement is no longer an economically feasible option.
(Kastriner, 1991: 15)
Restriction of trade counted for little in this new era. Indeed, the 1980s
ushered in a re-dedication to a conception of intellectual property as a
system to protect and exclude, rather than one based on competition
and diffusion. Notably, the former conception is embodied in TRIPs.
The Kodak case brought American jurisprudence full circle, back to
the A.B. Dick-case-derived philosophy championing protection, exclu-
sion and opportunities for extracting monopoly rents. It symbolized the
emergence of American patent law out of a phase of widespread contes-
tation and complexity that characterized most of the twentieth century.
The signals were unmistakable, and the trends captured by the case
alerted American business that patents would be upheld and could be
counted on as valuable economic resources.
In the case of copyright, the picture perhaps has been less sweeping
and dramatic. In Jessica Litman's masterful survey of American copyright
law (Litman, 1989), she reveals a pattern of incremental change in which
private stakeholders draft narrow legislation that favours their interests.
The context-specific nature of the legislation has rendered it inflexible
and unable to adapt to technological change. Therefore, each time a new
technology appears, whether player pianos or computer software, the
process repeats itself to the detriment of the public weal. Narrowly
tailored, industry-specific provisions are injected, and copyright owners
receive broader, more expansive rights. Litman documents the process of
negotiated bargains among industry representatives that has resulted in
a striking expansion of copyrightable subject matter. As she points out:
the dynamics of inter-industry negotiations tend to encourage fact-

specific solutions to inter-industry disputes. The participants'
frustration with the rapid ageing of narrowly defined rights has
inspired them to collaborate in drafting rights more broadly. No
comparable tendency has emerged to inject breadth or flexibility
into the provisions limiting those rights.
(Litman, 1989: 333, emphasis added)
The legislative process has tended to exclude the public and thereby has
privileged the private interests of authors and owners at the expense of
public interests in the use and reuse of copyrighted information (Aoki,
1996: 1310). Furthermore, as Cornish points out:
after considerable hesitation and bewilderment, the major computer

lobbyists in the United States pressed for computer programs to
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be protected by accretion, i.e., by treating them as literary works

within traditional norms of copyright; and they have now
persuaded much of the world to adopt this approach.
(Cornish, 1993: 55)
Under TRIPs computer programs are protected as 'literary works'. While

some users of copyrighted information have protested this expansion of
copyright, the recent trend has been to protect more rather than less.
The debate over semiconductor chip protection exemplified how new
technologies complicate the identification of intellectual property. Those
seeking intellectual property protection for semiconductor chips ulti-
mately prevailed, but not without a fight and some compromises. In the
early 1980s American semiconductor chip manufacturers, faced with
escalating competition from Japanese producers, sought to gain protec-
tion of the design structure (or 'architecture') of semiconductor chips
(mask works). They bemoaned the inadequacy of existing intellectual
property regimes to protect their products. While they initially sought
to obtain patent protection, their chips often failed to meet the requisite
standards of novelty and inventiveness (Drahos, 1997a). Therefore, they
sought protection by accretion into the broader copyright regime.
However, user groups, such as the American Association of Publishers
(AAP), successfully resisted this effort. The AAP represented a broad
group of industries that uniformly opposed copyright protection for
semiconductor mask works, 'viewing the proposed terms a serious
breach of fundamental copyright principles' (Doremus, 1995: 159). The
semiconductor industry reached a consensus to abandon its copyright
initiative and instead devised a sui generis solution.
The Semiconductor Chip Protection Act of 1984 provided an entirely
new form of intellectual property protection based in part on copyright,
and embodying reciprocity. The Act provided-for a short-term, 10-year
protection against copying the chip design, and provided such protec-
tion only to those foreign nationals whose countries had adopted a similar
law. While this was a domestic law, the international ramifications were
made quite clear from the outset. The US broke new ground by extending
protection to mask works, and the act incorporated extensive transition
provisions to facilitate reciprocal protection by other countries (Sell, 1998:
136). The TRIPs Agreement also includes this sui generis protection.
The semiconductor example once again establishes the salience of the
notion of triangulation that we are using to explore the political economic
history of IPRs. Semiconductor chips were a new technology. They repre-
sented a development in the realm of material capabilities, what it is
possible to achieve with the technologies to hand. The expansion of what
constitutes intellectual property to include the architecture of these chips,
required a rethinking of what such architecture was. No longer could it
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be seen merely as a technical solution to an electronic problem, but rather

it needed to be rethought as a creative innovation. Architecture (and the
use of the word itself signals such a change) is the product of creative,
individualized design, not mere ad hoc problem solving. The institutional
innovation of a new, sui generis, form of protection for a new technology
could not have taken place without the technological and ideational inno-
vations. But such a legislative step was not 'natural': rather it reflected
previous institutionalized settlements regarding the establishment of
intellectual property, the possibility of legal protection for creative
endeavour in the production of valuable technological goods. Thus, in
contrast to a functionalist account, the resulting law was neither auto-
matic nor 'efficient' but was the product of a contested political process.
It was not immediately self-evident that the lay-out of chips' circuits
involved a creative step. Only by arguing that the technological advance
should be regarded as a qualitative development (rather than merely
getting more circuits onto the chip) could the third institutional aspect
(the existence of intellectual property in allied fields) be brought into
play to produce a legislative change.
Continuing tensions in intellectual property
While the above suggests movement in a more proprietary direction, it

is noteworthy that not all activity around intellectual property in the US
is headed this way. Recent legal battles between Microsoft and Sun
Microsystems over copyright point to a complimentary public-regarding
trend. The conflict between Microsoft, favouring a hard proprietary
model, and Sun Microsystems, advocating a model that promotes greater
diffusion sharply reveals the contested nature of property rights in a
dynamic technological environment. It seems no exaggeration to suggest
that:
the ambition of program proprietors is by no means limited to

preventing simple piracy of their final product, as sold in object
code form. They wish copyright to give broad protection of the
various ways in which their programming idea might be realised
in detail.
(Cornish, 1993: 59)
Companies such as Sun seek to limit such broad protection in the inter-
ests of promoting interoperability, so that one company's software may
be used in other companies' computers and that hardware made by
different companies can be interconnected to create custom worksta-
tions."2 This, they argue, would give consumers more choice and trigger
further innovation. More recently Microsoft's confrontation with the US
Department of Justice has centred on its ability to control the market
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through its intellectual property based Windows monopoly. On the other

hand, software developments such as Linux and the open source move-
ment suggest that the conceptions of intellectual property (their
ideational construction) are once again in flux due to technological shifts.
This time such a shift seems to be away from the notion of knowledge
as singular property, though it is too early to draw firm conclusions
regarding the current 'moment' yet.13
Early on in the debate over copyright for computer software, the 'ultra-
protectionists succeeded in painting the interoperable developers as imi-
tators or clone makers no different from the software pirates of Thailand
or Taiwan' (Band and Katoh, 1995: xx). But as the debate progressed, the
interoperable developers (such as Sun) forged a separate identity for
themselves, and communicated this to policy makers and the courts.
While they agreed that copyright should apply to computer programs,
they parted company with their opponents by arguing that copyright
protection should not extend to interface specifications and reverse
engineering. Once it became clear that the interoperable developers
favoured balanced protection, rather than no protection at all, legislative
and judicial decisions ruled in favour of the interoperable developers.
Similarly, the 1991 European Community Software Directive resolved the
debate in favour of the interoperable developers by permitting reverse
engineering. The principles that interface specifications would remain
unprotected and that reverse engineering would be permitted were
further affirmed in US courts in the 1992 Computer Associates v. Altai
and Sega v. Accolade decisions (Band and Katoh, 1995: xxi). What was
once a settlement championing proprietary rights, became subject to
considerable contestation in the wake of the interoperable developers'
quest to balance these rights with the needs of their industry. Such a
settlement remains problematic now that a growing segment of the
industry is moving to forms of open source working.
As Band and Katoh point out, after the Computer Associates and Sega
decisions ultra-protectionists cried foul and 'contended that they had
been stripped of meaningful copyright protection' to the detriment of
innovation in the software industry (Band and Katoh, 1995: 340). Yet
innovation in this industry has proceeded apace. While the court deci-
sions rendered greater clarity for the interoperable developers, allowing
them to proceed with confidence that their activities would not subject
them to copyright liability, the precise limits of the court rulings will be
determined only through further litigation. More comprehensive legisla-
tive reform would add no more certainty because 'the legislative process
inevitably involves political compromises, which invariably lead to ambi-
guities' (Band and Katoh, 1995: 340). Therefore, we can expect a
continuing process of settlement with the clarification of laws, followed
swiftly by periods of contestation and compromise.
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TRIPs
As in the case of the Venetian glassblowers, the TRIPs Agreement was

a product of non-state actors whose comparative advantage lay in inno-
vation rather than imitation. A handful of American firms cultivated
strong ties with like-minded private sector actors in Europe and Japan,
and this 'Trilateral Group' negotiated and devised a consensual blue-
print for the TRIPs Agreement (Sell, 1999). As in earlier eras, these
proponents of new and stronger forms of intellectual property protec-
tion represented cutting edge and strategic technologies. Glassmaking,
salt manufacture and moveable type were eclipsed by pharmaceutical
and chemical manufacture, information technologies such as software
and entertainment industries. The US government pushed hardest for
the TRIPs Agreement, but the power behind the throne was this well-
coordinated private sector group.
The global approach ensconced in the TRIPs Agreement, however,
ushered in a much less immediately flexible regime for intellectual prop-
erty protection. But the new quasi-judicial WTO dispute settlement
mechanism may provide space for contestation and at least the oppor-
tunity to present different notions of intellectual property that focus on
public-regarding intent. On the other hand these are largely absent from
the rationale or the wording of the agreement itself (May, 2000). The
TRIPs agreement promotes universality in IPRs protection: certain behav-
iour that once was legal in some jurisdictions is now illegal in all, and
is subject to criminal penalties when national legislation is brought into
line with TRIPs commitments. It also specifies obligations regarding
scope, subject matter and duration of intellectual property protection,
which are at odds with previous conventions. States are required to
extend patentability to 'virtually all fields of technology recognised in
developed patent systems, extend patent protection for a uniform term
of twenty years' and secure 'legal recognition of the patentee's exclu-
sive right to import the relevant products' (Reichman, 1993: 182). These
new regulations reach
deep into national territories in requiring respect for intellectual

property from products destined for domestic markets such as phar-
maceuticals, processes internal to production such as chemicals,
and practices in local agriculture, medicine and education which
were outside of market relations.
(Arup, 1998: 374)
With respect to copyrights, states are now obligated to comply with the
standards embodied in the Berne Convention (as revised in 1971).
Additional obligations include extending copyright protection to
computer programs and compilations of data, and providing rental rights
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to holders of copyrighted computer programs (Reichman, 1993: 216).

Furthermore, the earlier Conventions lacked enforcement mechanisms;
the TRIPs agreement obligates signatory states to adopt implementing
legislation incorporating its terms, to abide by the newly high standards
of protection, and face the prospect of retaliatory trade sanctions if they
fail to do so. This shift has been achieved by the incorporation of intel-
lectual property into the international trade regime overseen by the
World Trade Organisation.
The global era is characterized by 'the increasingly threatened ability
of sovereign nation-states to make autonomous policy choices regarding
appropriate levels of intellectual property protection within their own
territorial boundaries' (Aoki, 1996:1343). In summary, the TRIPs agree-
ment: increases the range of regulatory standards that states are obliged
to implement; specifies in greater detail what those standards must be,
not least of all requiring them to be regarded as part of criminal law;
requires states to implement those standards and actively enforce them;
mandates and institutionalizes greater substantive convergence of
national intellectual property systems; and ties the principle of national
treatment to a higher set of standards for intellectual property (Drahos,
1997b: 202-3). Overall, TRIPs has 'added solidly to the property power
around the world of corporations with high technology resources' (Arup,
1998: 376). The TRIPs agreement, then, is intellectual property protec-
tion at its most developed and most geographically extended.
However, as in the historical evolution recounted above, the institu-
tion of intellectual property remains in flux. The struggle between private
appropriation of intellectual goods and their dissemination persists. In
the wake of TRIPs critics are emerging, and a number of groups have
mobilized to protest the sudden and dramatic global expansion of IPRs.
Protesters include: Indian farmers burning their crops in anti-TRIPs
demonstrations; advocates representing African AIDS victims decrying
the monopoly pricing of miracle drugs; consumer groups such as Ralph
Nader's Public Citizen; and scientists and librarians who fear the effec-
tive privatisation of knowledge that once was in the public domain; and
vocal critics of the intellectual property driven terminator-gene tech-
nology now 'discarded' by Monsanto and others. As the ramifications
of the TRIPs settlement become more palpable, one can expect the further
mobilization of protest and efforts to re-draw the boundaries and
redefine the purposes of intellectual property protection yet again.
CONCLUSION
The TRIPs agreement did not spring fully formed onto the global stage.
Indeed an important conclusion to be drawn from our argument is that
the TRIPs agreement can be only be understood as the latest stage in
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the long development process of the expansion of intellectual property

protection. In this we agree with Paul David who argued that:
although the history of intellectual property rights in the West is

replete with instances of redefinition and reinterpretation in
response to pressures to accommodate or advance the economic
interests of those most affected by the laws, many of the structure's
gross features continue to reflect the remote historical circumstances
in which they originated. These legacies from the past should not
be ignored, nor should their problematic aspects in contemporary
contexts be minimised.
(David, 1993: 44)
It is this conjunction of the present pressures for change with historical

continuities (and adaptations) that our approach to intellectual property
illuminates. Each phase of intellectual property law represents both
a legacy from a previous phase and an accommodation with current
technological developments and conceptual shifts. But this is more than
path dependency, it also reflects the contested character of intellectual
property as well as the extra-legal influences on legal structures and
practice.
The disputes between the twin ideologies of public-regarding dissem-
ination and monopolized private ownership, the conflicts over the scope
of intellectual property in light of emerging technologies and the volatile
legal relationship between private rights and the public domain, all feed
into the current settlement as encapsulated in the TRIPs agreement. These
disputes underline the history of intellectual property and different
perspectives 'win' at different times. In this article we have attempted
to outline some aspects of this argument and identify some moments or
crucial 'breaking points' in the history of intellectual property. Indeed,
despite contemporary justifications built on the role of the author or
inventor's just dessert or the need to protect the self, these justifications
post-date the emergence of intellectual property as a legal institution
during the pre-national phase of its development.14 This is important as
often justifications of intellectual property are presented as outside time,
as trans-historical, which we contend, they are not.
By utilizing an approach that foregrounds the triangulation of social
forces which has continually (re)produced the history of intellectual prop-
erty, our aim has been to propose a critical theoretical perspective on
this history. In doing so we have wished to suggest the continuing possi-
bility for remaking intellectual property. This history belies any linear
conception of the 'march' of IPRs in a more proprietary and exclusionary
direction. For instance, we could place our selected 'moments' on a spec-
trum with 'public-regarding' settlements at one end and 'monopoly
privilege' settlements at the other. Public-regarding moments would
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include the 1624 monopolies act, and the US Supreme Court's overruling
of the A.B. Dick decisions (linked to the antimonopoly thrust of the
Clayton Act). Monopoly privilege moments would include: the original
A.B. Dick ruling, the 1986 Kodak/CAFC decision, copyright in TRIPs
(expansion of works covered as literary works), and the TRIPs agree-
ment more generally. Closer to the middle of the spectrum, representing
an explicit effort to balance the rights of the property owners and the
rights of users would be: the Semiconductor Chip Protection Act, the
victories for reverse engineering embodied in the Sun/Microsoft contro-
versies, and the 1991 European Software Directive. We stress that the
TRIPs agreement is merely another moment, another stage in the contin-
uing and contested history of IPRs.
Especially at the international or global level, the evolution of intel-
lectual property reflects the development of hegemonic power in
successive social systems. The most powerful states, and perhaps more
crucially individual actors (specifically, most recently, multinational
corporations in the high-technology and media sectors) within those
states, have been able to structure and shift the legal parameters of the
(international) protection of intellectual property. Developments in all
manner of technologies have affected, though not determined the direc-
tion of such shifts.
While this is not the whole story, by identifying crucial moments we
hope we have started to reveal the compromises and contingency in the
development of intellectual property law. Underlying this approach is
the authors' perception that intellectual property protection as codified
and formalized in the TRIPs agreement is the result of a long struggle
between various groups over the control of economically significant
knowledge resources. This struggle need not have necessarily brought
us to this juncture and the fact that it did suggests to us that we need
to examine carefully the history of intellectual property and accord
appropriate weight to a number of extra-legal factors. To understand
intellectual property today we need to understand its historical roots,
and to understand these roots we need to do more than (re)produce the
convenient teleological account which seems to have such wide currency
in policy oriented circles today.
ACKNOWLEDGEMENTS
We wish to thank R. Kurt Burch, A. Claire Cutler, Deborah Avant, and

the anonymous reviewers for RIPE for incisive comments on earlier
drafts. As always, the remaining shortcomings are the authors' own.
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NOTES
1 Indeed, asymmetrical economic power goes a long way toward explaining

why semiconductor chips are identified as intellectual property, whereas
indigenous folklore is not (Drahos, 1997a).
2 See our earlier work (May, 2000; Sell, 1998)
3 It should be stressed here that we are referring to Realist approaches to inter-
national political economy rather than Legal Realism as an approach to the
social embeddedness and social consequences of domestic jurisprudence.
4 See North (1990) for the classic telling of this story.
5 This perspective is at odds with North's argument that sustained innova-
tion only began in earnest after the establishment of intellectual property
rights to raise the private rate of return for innovation. He attributes the
delay in the dissemination and fuller exploitation of Watt's invention to the
inadequate development of companion technologies, rather than to the power
of withholding property and the social inefficiencies generated by such with-
holding (North, 1981: 162-6).
6 One of the best historical accounts of evolving philosophical perspectives on
intellectual property is Drahos (1996). His book offers considerable discus-
sion of the history of the development of the concept of intellectual property
but leaves its connection with the world of material social relations largely
undeveloped.
7 Jeremy Phillips (1982) explores the issue of whether it was Jacobus Acontius
who introduced the concept of the patent to the Court of Elizabeth I, and
suggests that having been awarded a patent himself (with two others) in
Venice for 'driving mills and draining marshes' he sought similar protec-
tion for his invention on arrival in Britain.
8 There is some evidence that despite the formal lack of an approximation to
modern copyright, the well-developed Roman publishing industry did recog-
nize something that might be termed intellectual property. Authors
contracted with publishers to reproduce and distribute their work. The
Romans seemed to distinguish between authorial rights to protect the
integrity of the work, and the right of reproduction (Ploman and Hamilton,
1980: 7). With the fall of Rome such consideration as regarding the rights of
authors lapsed, with the occasional exception.
9 It is noteworthy that the US was unable to join the Berne Convention due
to a mercantilist provision in its domestic copyright law. The so-called manu-
facturing clause, which stipulated that copyright would be granted to foreign
authors only if their works were manufactured in the US, bedevilled the
American position in international copyright until 1986, when the clause was
finally allowed to expire (Feather, 1994). Previously the US had been instru-
mental in organizing the Universal Copyright Convention. The UCC was
adopted at a UNESCO conference in Geneva in 1952 and revised in Paris
in 1971 and formalized the use of the universal copyright symbol (?. Though
weaker than Berne the UCC gave countries unwilling or unable to ratify
Berne, such as the US, some measure of international protection for their
national authors.
10 Commonly known as competition policy outside of the US.
11 The impetus for the creation of the court originated in the early 1970s to
facilitate docket management and relieve overburdened courts.
12 For an extended discussion of the concept of interoperability see Band and
Katoh (1995).
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13 Another case in point is the human genome. Celera, a private company

headed by Craig Venter, and a public enterprise, the Human Genome Project,
jointly funded by the Welcome Trust and the US Government have been
racing to decode the human genome. The public enterprise has been posting
its findings on the Internet, thereby placing it in the public domain and
making it freely available to scientists and researchers.
14 Though this is broadly the case, Prager suggests that were it not for the
decline of Venice in the Sixteenth century there might have been a swifter
move to the justification of intellectual property on the basis of the author
or creator (Prager, 1944: 719). But this was never extended and the recog-
nition of the creative individual's intellectual property rights linked to their
creative act had to wait some years.
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Moments in Law: Contestation and Settlement in the History of Intellectual Property

Author(s): Susan Sell and Christopher May

Stable URL: https://www.jstor.org/stable/4177394

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Moments in law: contestation

Susan Sell and Christopher May

Intellectual Property Rights (IPRs) are increasingly recognized as the key

Critical theory; ideas of ownership; legal institutions; intellectual property

Review of International Political Economy

This content downloaded from

The development of intellectual property legislation, firstly at the

REALIST, FUNCTIONAL AND CRITICAL

We locate our approach to the history of intellectual property within a

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to as problem-solving approaches. In particular, we present our account

This content downloaded from

in the past this history has been presented in functionalist te

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gains from co-ordination and co-operation. However, in the actual history

transition was hardly noticeable as long as the merchant, the master,

This move from holding to withholding, the ability to restrict use, is of

This content downloaded from

sooner' (Renouard, 1987). The imposed scarcity of this particular inno-

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relations for granted but calls them into question by conce

SOME MOMENTS IN THE HISTORY

The progression of intellectual property from one structure of law to

developmental potential signifies a possible change of structure. It

This has led us to identify the developments within the institution of

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dialectical move from institutional settlement to contestation and dispute,

Pre-legislative 'ownership' of ideas

Before moving to the generally mapped history of intellectual property

This content downloaded from

all subject to some sort of proto-intellectual property provision. In this

a policy of encouraging the importation of new arts from abroad

Technology transfer was at the heart of this desire to establish such

This content downloaded from

necessarily, the innovators), the early history of copyright is largely

introduced controversy over new issues involving monopoly and

While in the half-century immediately after the invention of modern

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of copyrighted works to be maintained (to police unauthorized

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The national phase

Up until the early seventeenth-century patents, including monopolies

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the remaining grants to be examined by the courts without her restraint.

empowered to search the premises of any printer or bookseller for

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suppressing publications not licensed by the Crown ... [and there-

The individual rights of the author were only incompletely recognized.

This content downloaded from

Until the end of the nineteenth century, intellectual property protection

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However, during the period 1850-75 a controversy raged between

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patents is an important moment of settlement. Though tec

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American law and the origins of the global era

Venice and Britain, prominent economic powers in previous eras, estab-

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ability of the hegemon to construct institutions that reflect contempo-