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An Intellectual Property Category Mistake: The Work of Learning

I have been working for some time on a book-length manuscript (introduced here earlier) tracing the history of the idea of intellectual property before there was a legal class of intellectual property in the modern sense (which is usually said to originate with the Statute of Anne 1710). My history is focused on the particular, if not peculiar, class of intellectual property associated with learning and the learned, which is to say with works of scholarship and research.

The book itself is a good number of months and two reviews away from publication, so this is not an infomercial-blog for it, but a way of setting up my next blogpost about a new publishing proposal that I am developing in light of this book’s conclusions, which I am presenting here. My interest in writing this book comes out of my advocacy of open access, not surprisingly. This advocacy assumes that works of learning are not like other intellectual property, and to explore the basis of such an assumption, I turned to the history and theory of intellectual property, before the legal concept had taken hold, to try to understand from where that assumption might be coming.

What I found by examining a millennium and a half worth of history in the Latin West and Early Modern period – involving such learned figures as Jerome, Augustine, Benedict, Cassiodorus, Bede, Alcuin, Anselm, Hildegard of Bingen, Galileo, Newton, Locke – was that the learned properties in question involved, if not consistently, a set of properties and rights that could be said to be formative in later thinking about intellectual property.

The learned made much, for example, of the qualities of authorship and how those qualities distinguished one person’s work from another’s; the learned also worked hard on preserving and honoring the integrity of the text. At the same time, the rights of every scholar to access and use the work of these authors was being recognized through the communal space of the libraries found in monasteries, schools, and universities. Finally, the particular economy that supported this learning was one largely of institutional sponsorship – through endowment, grant, and gift – although individual patronage also had a part to play for some, such as Galileo and Locke among those I consider.

What this prehistory brings to the fore is the extent to which learning is an important source of for the very idea of intellectual property, in an intellectual, moral-legal, and economic sense. This history also lends weight to a second idea, namely, that the intellectual properties represented by learned works stand apart from what we typically think of as intellectual property today, be it a song or movie. This isn’t to overlook the patents held by universities or the bestsellers written by professors. It is only to say the vast majority of the work in scholarly journals and books is not competing in the commercial market of intellectual property.

Thus, my claim that learning, in this sense, constitutes a different order or category of intellectual property. This history of distinctiveness is recognized in current statutory and common law through such measures as fair use, the academic exception, patent research exception, tax incentives, and the Bayh-Dole Act of 1980. What is missing from the exceptions granted to learning is the stronger sense of learning involving a coherent category of intellectual property, deserving of legal distinction as such. The irony to this is that the U.S. constitutional clause responsible for intellectual property legislation actually makes learning the primary category and beneficiary, with commercial activity a secondary means of seeing its benefits realized. The famous clause empowering Congress to enact such laws states its intent as “to promote the progress of science and the useful arts.” Most intellectual property litigation is, I think it fair to say, about something else. My next post will be about a proposal for a cooperative approach to scholarly publishing that I am developing that follows on, I believe, the history reviewed in this book. Stay tuned, as we use to say in an earlier era.

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