The construction of intellectual property : a study in applied legal philosophy

Abstract

Intellectual property law is pervasive and powerful. It affects the ways in which humans use ideas, information, knowledge and communicative symbols, and vast sums of money turn on it. But what (if any) forms should it take? This normative question occupies much space in the literature, yet its answer remains contested. Intellectual property laws continue to be implemented and expanded - often in the face of passionate and polarized support and opposition - yet the jurisprudential foundations of these laws may be poorly understood. Much literature offers and dissects normative or political arguments for the justification of intellectual property, providing considerable insight into intellectual propertization. Yet fundamental issues remain underexplored. Rather than following the normative or political approaches and asking why intellectual propertization occurs, this dissertation explores the subject of intellectual propertization by focusing on the preliminary issues of what 'intellectual property' refers to and how it is made. If words are a lawyer's tools, it is illuminating to analyze the words that are chosen to define and justify laws. The dissertation thus commences with an exploration of the language of 'intellectual property': assumptions made, rhetorical forms used, and how humans use the language of intellectual property to create and expand the discursive possibilities within this area of law to advantage their own interests. The opening chapters challenge assumptions about, and common legal techniques for the definition of, 'intellectual property'. They suggest that 'intellectual property' is perhaps not quite what it may seem to many who use it. If 'intellectual property' is not what it seems, what is it? As a thing's nature depends significantly on its constitutive elements and how they relate to one another, the dissertation identifies core conceptual criteria that typify areas of law that are commonly categorized under the 'intellectual property' rubric. It suggests that intellectual propertization occurs when an ideational object is associated with a documented form to create an intellectual property object whose abstract boundaries are defined by applying conceptions of authorship and originality, and with which rights are then associated. In this way, intellectual property law not only regulates human behaviour with respect to the objects defined by applying these criteria, but it creates those objects. In other words, the legal system's application of the concepts that are identified as intellectual property's core criteria autopoietically creates further concepts, which become the conceptual objects -the intellectual property -regulated by intellectual property law. The last part of the dissertation tests this theory by considering whether the core criteria can be identified in doctrines similar to, but separate from, intellectual property doctrines. Where this occurs, such doctrines are typically precursors to modern 'intellectual property' and/or they tend to be replicated by intellectual property laws. It is suggested that non-legal reasons (such as preservation of traditions) may explain the apparent discrepancy where non-intellectual property doctrines display intellectual property's core criteria. The core criteria themselves seem sound as the tools with which 'intellectual property' is constructed. In considering the reasons for intellectual propertization of particular objects, normative and political justifications become relevant. Just as the cultural artifacts that intellectual property laws regulate are created by humans, intellectual property objects are constructed by people using the legal system to achieve various goals. Intellectual property regulates constructed objects, not naturally occurring things. And what falls under the 'intellectual property' rubric at any point in time depends on the prevailing social, economic and legal conditions. Thus 'intellectual property' is a legal artifact. It is hoped that, by contributing a better understanding of the nature of 'intellectual property' by explaining the way in which it is constructed, the theory put forward in this dissertation will ultimately enrich normative and political discussions about intellectual propertization.