Mario Biagioli, Peter Jaszi and Martha Woodmansee (eds): Making and unmaking intellectual property: Creative production in legal and cultural perspective. Chicago: University of Chicago Press, 2011, 466pp.
Professor of International Governance
School of Law
University of Leeds
This book review essay was accepted for publication in the Springer journal Metascience. Unfortunately I was unable to accept the publisher’s conditions for publication: that, either (a) I assign my copyright; or that (b) I grant the company permission (by authority I do not in fact have) to bill my university library for the sum of €2,200 to make the essay open access. Since option (a) is morally unacceptable and (b) is the same and in any case unavailable, I have decided to make the article freely open access whilst retaining my copyright including moral rights of authorship and integrity.
In recent decades, intellectual property has attracted some outstanding scholarly work from an ever increasing breadth of academic disciplines going well beyond law, economics and business studies where it has conventionally been located. Bridging the social sciences and the humanities, these disciplines range from history and philosophy of science, and science and technology studies, to literary studies, international relations, politics and anthropology. The sheer quantity of literature being turned out every year on patents, copyright, trademarks and the other rights such as geographical indications, both altogether and separately, is quite staggering. This reflects both an increased interest generally, and the emergence of niche areas. Example of these include traditional knowledge (McManis 2007), copyright in the digital environment (eg Boyle 1997; Lessig 1999; Rimmer 2007), patents and public health (Abbott and Dukes 2009), access to knowledge (Shaver 2010; Shaver and Rizk 2010; Subramanian and Shaver 2011), and intellectual property and development (Matthews 2011; Netanel 2008; Wong and Dutfield 2011). Recent years have seen the formation of multidisciplinary societies and networks such as the International Society for the History and Theory of Intellectual Property (ISHTIP), which holds annual conferences, and the IPBio Network. Edited volumes on intellectual property have become abundant, some of which are ground-breaking in their sophistication, and in how they force us to re-think basic and long-held assumptions about intellectual property that may be unproven, inadequate, tendentious or even patently (pun not intended) wrong. Two of these include the contestable incentive to invent justification for patent law, and the supposedly factual and objective nature of the author as one who creates from nothing. Two of the book editors have produced some illuminating work on the latter theme (see Woodmansee and Jaszi 1994).
The present volume, edited by three leading members of the aforementioned society, stands out in this crowded scene, representing a high point in multidisciplinary studies in intellectual property. In terms of breadth and insightfulness, it surpasses any other edited collection known to this reviewer though it focuses almost exclusively on patents and copyright, with trademarks barely getting a look in. While somewhat United States-centric, understandable given the backgrounds of the editors and the identity of the publisher, there is much for those of us working and living outside that country’s borders to appreciate and learn from.
Given the high international repute of the three editors and of most chapter authors, one rightly expects every chapter to be strong, and the book does not disappoint. The volume authors comprise a sizeable proportion of those scholars that have been writing genuinely interesting and original things about intellectual property.
The book is divided into five sections. The first, entitled High and Low: IP Practices and Materialities, concerns the representation of inventions in patent documents including the changing role of the specification, which comprises text and illustrations, in defining not just the legal rights but the invention itself. Mario Biagioli’s and Kara Swanson’s chapters treat the patent as, in the words of former British House of Lord Judge Lord Hoffman, “a piece of information”. (1) This understanding of the essential nature of the patentable invention contrasts with its original guise as no more nor less than a trading monopoly over a “thing”, typically (if one goes far enough back) neither truly novel nor even inventive. Biagioli shows how this essential feature of the modern-day patent evolved historically as national governance evolved from absolutism to liberalism, and links its emergence and consolidation as a legally recognised mental abstraction to a shift from the patent as a monopoly privilege to the patent as a bargain between the state on behalf of the public and the inventor, the latter enjoying legal rights as a reward for her or his disclosure of the invention in the two-dimensional form of the patent specification.
It is an intriguing perspective. However, his claim that “modern patent law has come to construe the patented invention as a text” (Biagioli 2011: 31) seems like an assertion that patented inventions have become purely immaterial as far as the law is concerned. For readers unclear on this matter it is important to explain that certain inventions, including those claiming life forms, are irreducible to a mere written text even with the support of a deposited sample, and that for owners this is a good thing too. With such categories of invention, the text may play no more than a limited role in terms of asserting the patent including litigation. It is perfectly possible to make an invention – and get sued for doing so – without any reference to the patent specification. Thus, the United States Supreme Court justices recently held unanimously that a farmer had infringed a company’s patent covering genetically modified seeds by the act of reproducing seed on-farm from plants grown from seeds he had acquired legally. (2) Accordingly, he had “made” the invention despite doing nothing other than planting second generation seed on his land and letting nature do the bulk of the remaining work. According to the dictionary definition of “to make”, though, the Court was perfectly correct. But it is a long way from reading the patent text in order to re-make the invention as disclosed. (It is also a problematic decision in terms of farmers’ long established rights and freedoms as well as, I would argue, the integrity of the patent system, but that is another matter.) As we will see below, the Pottage and Sherman chapter covers similar territory in the context of new plants, discussing how the law apportions agency and credit in plant inventing given the mixed contributions from Mother Nature and from the breeder/biotechnologist. (See below).
Swanson’s very interesting article on the patent specification follows up Biagioli’s claim that the inventor over time was reframed “as a right-bearing author” (ibid.: 32). The inventor may be an author of sorts, but she is not the author of the patent specification, which is not a work of literature but “an inscribed verbal act” (Swanson 2011: 41) that is anonymous yet personal. It has remained personal despite the mid nineteenth century emergence of patent attorneys charged with writing the patent on behalf of the inventors, a task that many conducted with great skill. However, somewhat paradoxically, this did not diminish the standing of inventors as geniuses who continued to be celebrated as both inventors and authors of their patents.
There is much less history in section two, which deals with traditional knowledge and the commons, the concept of the public domain forming quite a wide bridge between the two subjects. Consequently, there are chapters covering areas ranging from traditional cultural expressions to software. There is much to learn from the chapters by Rosemary Coombe and Marilyn Strathern. It has been convincingly argued by many that the customary norms relating to the knowledge and cultural expressions of “indigenous and local communities” diverge from western notions of property, including intellectual property, rendering the latter inappropriate to protect the former. Nonetheless, as the above two authors demonstrate in quite different ways, these and other legal concepts and formulations imposed on these communities can also be turned into strategies to promote legal recognition in their favour.
Piracy is a much used term of abuse for people and sometimes whole nations that are deemed to disrespect intellectual property rights and engage in or at least to condone large scale infringement. Infringement is of course a more legally accurate term but for obvious reasons the Motion Picture Association of America and its ilk much prefers more emotive words like piracy and theft. Never mind that human creativity is essentially incremental involving the recombination of existing elements, whether these are ideas, texts, musical notes, machine parts, chemicals, design forms, or whatever, and that overly extensive property claims can stifle access unhelpfully. In section three, IP and other crimes, the chapters by Martha Woodmansee on the eighteenth century German book trade and Adrian Johns reveal some interesting findings. First, the use of such language is nothing new, London-based literary copiers being called “pirates” as early as the late 1600s. Second, unauthorised reproduction of literary works was at times not only tolerated but positively encouraged as a means to benefit society. Even many authors supported copying so as to expand readership. (One wonders how many of today’s salaried academics might feel likewise.) Third, today’s debates on whether aggressive measures to repress piracy may go too far by intruding unreasonably on the rights and freedoms of individuals were also going on in the early modern era.
The fourth book section, Old things into new IP objects, contains several intriguing chapters. Daniel Kevles is the foremost authority on the emergence of plant intellectual property in the United States. His chapter shows how plant and animal improvers were able to protect their ‘intellectual property’ before it was possible to get patent protection. The point being argued is not that plant IP is unnecessary to promote innovation, true as that might conceivably be. What should instead be evident to the reader is that the appearance of the first extant intellectual property law designed specifically to protect plants, the 1930 United States Plant Patent Act, benefited not the most innovative breeding sector but the businesses with most to lose from uncontrolled copying. These were the nurseries selling asexually reproduced fruit trees. The possibility of grafting allowed for the easy mass production of genetically identical specimens by both innovators and by the copiers. The varieties became intellectual property not by dint of any extraordinary levels of human creativity, but because their asexual reproduction provided sufficient human involvement for them to be considered legally as human artefacts.
This same 1930 law is the starting point for Pottage and Sherman’s excellent chapter which explores an issue that intellectual property laws and jurists on both sides of the Atlantic have effectively, if not at all times and jurisdictions, tended to treat as insignificant: that of whether living things (and digital artefacts) are inherently different from other ‘inventions’ and therefore problematic. The Plant Patent Act glossed over the differences by allowing only asexually reproduced plants (clones) to be protected, making it possible to (falsely) analogise plant reproduction to factory processes, and breeding to inventing: “[b]ecause cloning turned out multiple copies with precision and consistency, it seemed to be a biological mode of industrial manufacture” (Pottage and Sherman 2011: 275). Since then biotechnology has of course come a very long way. But biological inventions remain a peculiar and challenging type of subject matter for the patent system to accommodate, though the United States Supreme Court at least continues to find no difficulties, as the case discussed earlier shows us. Bowman, the farmer sued by Monsanto for patent infringement, was deemed to have “made” the invention despite not having manufactured it by anything remotely resembling an industrial process. The Court rejected what it somewhat dismissively referred to as the “blame-the-bean defense” (3) which posited that it was Mother Nature that did it, that is, made the invention, and not Bowman.
The fifth section, Doing and undoing collaborative IP, closes the book strongly with an intriguing set of articles on quite disparate subjects. One of these, by Doton Oliar and Christopher Sprigman, explains how social norms have been adopted by stand-up comedians to resolve disputes between themselves about joke-stealing, avoiding resort to copyright litigation. It may be concluded from this chapter and from the book more generally that, fascinating as intellectual property law is for scholars, and relevant as it might be to the so-called “knowledge based economy”, not all creative individuals and communities have much use for formal intellectual property laws, either because they are amenable to uncontrolled access, because they are not practically useful for them, or else because available norms and practices can do the job quite adequately (Arapostathis and Dutfield 2013). That this book demonstrates that reality makes it all the more valuable.
1 Merrell Dow Pharmaceuticals Inc v HN Norton & Co Ltd  UKHL 14 (26 October 1995), para. 28.
2 Bowman v Monsanto et al. Supreme Court of the United States. Decided May 13, 2013.
3 Bowman v Monsanto: 9.
Abbott, Frederick M., and Graham Dukes. 2009. Global pharmaceutical policy: Ensuring medicines in tomorrow’s world. Cheltenham: Edward Elgar.
Arapostathis, Stathis, and Graham Dutfield. 2013. Knowledge Management and Intellectual Property: Concepts, Actors and Practices from the Past to the Present. Cheltenham: Edward Elgar.
Biagioli, Mario. 2011. Patent specification and political representation. In: Biagioli, Peter Jaszi and Martha Woodmansee (eds): Making and unmaking intellectual property: Creative production in legal and cultural perspective. Chicago: University of Chicago Press: 25-39.
Boyle, James. 1997. A politics of intellectual property: environmentalism for the net? Duke Law Journal 47: 87-116.
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Netanel, Neil W. (ed.). 2008. The Development Agenda: Global intellectual property and developing countries. Oxford: Oxford University Press.
Pottage, Alain, and Brad Sherman. 2011. Kinds, clones, and manufactures. In: Biagioli, Peter Jaszi and Martha Woodmansee (eds): Making and unmaking intellectual property: Creative production in legal and cultural perspective. Chicago: University of Chicago Press: 269-283.
Rimmer, Matthew. 2007. Digital copyright and the consumer revolution: Hands off my iPod. Cheltenham: Edward Elgar.
Shaver, Lea (ed.). 2010. Access to knowledge in Brazil: New research on intellectual property, innovation and development. London: Bloomsbury Academic.
Shaver, Lea and Nagla Rizk (ed.). 2010. Access to knowledge in Egypt: New research on intellectual property, innovation and development. London: Bloomsbury Academic.
Subramanian, Ramesh, and Lea Shaver (ed.). 2011. Access to knowledge in India: New research on intellectual property, innovation and development. London: Bloomsbury Academic.
Swanson, Kara W. 2011. Authoring an invention: Patent production in the ninetheenth-century United States. In: Biagioli, Peter Jaszi and Martha Woodmansee (eds): Making and unmaking intellectual property: Creative production in legal and cultural perspective. Chicago: University of Chicago Press: 41-54.
Wong, Tzen and Graham Dutfield (eds). 2011. Intellectual property and human development: Current trends and future scenarios. Cambridge: Cambridge University Press.
Woodmansee, Martha and Peter Jaszi (eds). 1994. The construction of authorship: Textual appropriation in law and literature. Durham: Duke University Press.
© Graham Dutfield, 2013