The Competitiveness of Nations in a Global Knowledge-Based Economy



The Political Economics of the Public Domain

Harry Hillman Chartrand

Presented to the

Political Studies Student Association

University of Saskatchewan, Nov. 14, 2005


intellectual property is, after all, the only absolute possession in the world... 

The man who brings out of nothingness some child of his thought has rights therein

which cannot belong to any other sort of property

Zechariah Chaffe

“Reflections on the Law of Copyright” ,

Columbia Law Review, 1945



The Communist Revolution failed; the previous Republican Revolution triumphed.    The revolution of the individual that overturned an ancient regime of subordination by birth buried a revolution of class consciousness.  The Communist Revolution was a 75 year detour off a 500 year Republican freeway towards increasing individuation of the individual.  The American and French Revolutions, however, were betrayed.  The first restricted the Person to ‘pale penis people’.  The second practiced self-righteous revolutionary terror.  There were others including that a body corporate or ‘legal person’ enjoys the same rights as a natural Person and ‘the myth of the creator’.  These threaten ‘freedom of the press’, ‘freedom of expression’ and ‘freedom of information’.  Ideological evolution must proceed from the root not betrayal of the Revolution.  I examine the nature of knowledge; narrate ‘the myth of the creator’; examine the private domain of intellectual property rights; consider the public domain, the intended beneficiary of IPRs; assess the political economics of the public domain; and, consider the counter-revolution or “second enclosure movement” offering suggestions how to defend, extend and expand our information democracy.


1.0 Introduction

1.01         In his April 25, 2005 ‘State of the Union’ address to the Duma, Vladimir Putin, President of the Russian Federation, called the collapse of the Soviet Union in 1989 “the greatest geopolitical catastrophe” of the twentieth century (BBC April 25, 2005).  Whether true or not, this event, accompanied by the nearly synchronistic conversion of Communist China to market economics marked the end of the Market/Marx Wars which had raged and divided the world for almost a century and a half since publication of the Communist Manifesto by Karl Marx and Frederick Engels in 1848.

1.02         The Communist Revolution, in practice, failed.  The previous revolution, the Republican Revolution, survives.  A world divided and threatened with thermonuclear winter for almost half a century now rallies around the last ideology standing – market economics with its political and legal corollaries: popular democracy and private property.  This is not, however, the end of ideology (Bell 1960) nor of history (Fukuyama 1992).

1.03         In a way, the Republican Revolution sought political freedom for the individual spawning the self-regulating market as its economic corollary.  The Communist Revolution, on the other hand, sought economic freedom for the individual (each according to one’s need) through a centrally controlled Marxist command economy spawning the one-party Leninist state as its political corollary.  Arguably both forms of freedom – political and economic - are needed to realize full human potential.

1.04         Nonetheless, today, with the exception of North Korea and Cuba, no Nation-State on earth subscribes to economic Marxism while the People’s Republic of China struggles to reconcile private property and the market with the political clarity of Leninism (M. Polanyi 1957, 480).  (In this view, conversion is a necessary yet distasteful detour on the road to perfect communism.)  Accordingly, virtually all Nation-States are either current or expectant members of a World Trade Organization (WTO) rooted in the ideology of the marketplace. 

1.05         The word ‘ideology’ has many meanings today (Gerring 1997) but was coined simply enough by Condillac, a contemporary of Adam Smith (1776), to mean ‘the science of ideas’ (OED, ideology, 1a).  Separation of Church and State was critical to both American and French Republican Revolutions.  Creation of a secular ‘science of ideas’, to counter the awe and mystery of religious and metaphysical thought and ritual, was part of a revolutionary agenda designed to overthrow an Ancient Regime of subordination by birth. 

1.06         In the simplest terms, the Republican Revolution was about the individual, the natural Person, as foundation of society, not bloodline.  It found political expression as ‘We, the People’.  It found economic expression as laissez faire (let them make what they want) and laissez passer (let them work where they want) (Rothschild 2001).  In this light, the Communist Revolution, based on class rather than the individual, was a seventy-five year detour off what is a five hundred year Republican freeway towards the increasing ‘individuation’ of the individual.

1.07         Adam Smith published his Wealth of Nations just as the Republican revolution in America (1776) was overthrowing the feudal order of subordination by birth.  The Declaration of Independence (1776) broke with this ancient past with the premise: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

1.08         This view of the individual as foundation stone of political life was shared by Adam Smith and is consonant with his view of the individual as the basis of economic life.  In his day, however, there was only one life.  Politics and economics were incestuously entangled - political power converted to economic profit and profit to political power.  A regime of privilege in the form of feudal corporations including the Church, guilds, towns and trading corporations was, to Smith, a fundamental impediment to the wealth of nations because it inhibited the individual’s vigorous pursuit of self-interest rather than submissively serving the interests of a lord, lady or other superior born above stairs.   Today, this is called the ‘problem of agency’.

1.09         The individuation of the Person is also mirrored in the Standard Model of economics, alternatively known as the Marshallian, Neoclassical or Perfect Competition model.  In production, it is called ‘the division and specialization of labour’, i.e., of the individual as worker.  In consumption, it is called ‘consumer sovereignty’, i.e., of the individual as consumer of whom it is said “De Gustibus Non Est Disputandum”, i.e., taste is not disputable (Stigler & Becker 1977).  Among economists, this is sometimes called ‘dollar democracy’, voting with dollars in the marketplace rather than ballots at the polls.  Put another way, popular democracy and the self-regulating market are the right and left hands of a Republican Revolution that changed the world.

1.10         The natural Person is, however, also the fountainhead of new knowledge and the matrix in which, ultimately, all knowledge resides (Polanyi 1962a).   This connexion between the Person and knowledge is the root of the emerging knowledge-based economy.  It is also the source of fundamental Republican freedoms like freedom of expression, of the press and of information that, collectively, constitute our ‘information democracy’.  It is the evolving relationship between the Person, knowledge and democracy as well as the growing disconnect between a knowledge-based economy invoking monetarization of information and the public domain of our information democracy that is the subject of this paper.

1.11         First, I will summarize the nature of knowledge – biological, technological, ideological and formal.  Second, I will trace the ascent of the individual natural Person in a narrative called: ‘The Myth of the Creator’.  Third, I will examine the private domain of knowledge, enframed and enabled by intellectual property rights (IPRs).   Fourth, I will consider growth of the public domain of knowledge which is the objective of IPRs.  Fifth, I will assess the political economics of the public domain where, once again, political power is being converted into profit and profit into political power.   Finally, I will conclude with thoughts about a de facto counter-revolution called “the second enclosure movement” by Boyle (2003) and how we might defend and extend the public domain and expand information democracy.


2.0 The Nature of Knowledge

2.01         In theoretical biology there are three spheres of knowledge: the geosphere, biosphere and noösphere.  The geosphere is that part of the world inhabited by inanimate matter and energy.  Since the initial Scientific Revolution of the 17th century, knowledge about the geosphere has been effectively acquired through physics and inorganic chemistry using material and efficient cause, the ‘when-then’ (Grene & Depew 2000) or ‘billiard ball’ causality of experimental instrumental science.   Since the time of Immanuel Kant, a contemporary of Adam Smith, knowledge about the biosphere – that part of the world inhabited by living things - has less effectively been acquired through a biology based upon formal and final cause, or what Kant called the ‘natural purpose’ of living things.  Since Darwin, ‘natural purpose’ has been defined as survival and reproduction mediated by ‘natural selection’.  To this recipe, Kauffman adds coevolution, coconstruction or the mutualism of living things (Kauffman 2000).  Since the Genomics Revolution of the 1950s and revelation of the structure of DNA, biology has, however, developed a genetic mathematics of probability that permits simulation of material and efficient cause in living things so that “it has become possible to think that biology can, for the first time, join physics and chemistry as a ‘technoscience’” (Grene & Depew 2004, 345).

2.02         The noösphere, on the other hand, is that part of the world inhabited by human thought, law and ideology.   Knowledge about it has been acquired using varying combinations of all four causes - material, efficient, formal and final – arguably with limited success reflecting that the object of investigation, humanity, is also its subject.  What links the spheres and causes together into one world is homo sapiens (literally the ‘wise earth’).  This is a species, like all others, struggling to earn a living in a changing, hostile environment.  Unlike other species, however, it knows that it does so.

2.03         Following Grene & Depew (2004), every organism lives in an active environment enframed by invariants and filled with affordances.  All knowledge is orientation relative to environmental constants a.k.a. invariants, and to opportunities and threats, a.k.a. affordances.  Following Polanyi (Oct. 1962), knowledge is acquired by an organism through the tacit conjunction of subsidiary knowledge of invariants and focal knowledge of affordances.  Following Heidegger (1955), adaptation of an organism includes not just adaptation to, but also adaptation of the environment creating ‘artificial’ invariants to enframe and enable it as a standing reserve, ready at hand to serve an organism’s purpose, e.g., an anthill, beaver lodge or beehive.  Adaptation of the environment by homo sapiens is called ‘technology’.

2.04         In the noösphere itself, ideology acts like technology but on a higher, more abstract plane.  It enframes and enables us but instead of matter and energy it enframes human thought – scientific, religious, economic, legal, political, et al.  It makes ready at hand pathways of communication between minds.  And in that part of the noösphere concerned with the production and consumption of goods and services, what Kauffman (2000) calls the ‘econosphere’ or the economy, knowledge takes three interrelated forms: personal & tacit, codified and tooled knowledge. 

2.05         Personal & tacit knowledge is fixed in the neuronal bundles of the human brain as memories and in human muscle & nerve as reflexes.   Codified knowledge is fixed in a non-utilitarian extra-somatic matrix carrying semiotic meaning to another human mind distant in time and/or space.  Tooled knowledge is knowledge as function fixed in a utilitarian extra-somatic matrix.  

2.06         These three forms, in turn, become economic inputs in the production process.  Codified & tooled capital is knowledge fixed or frozen in an extra-somatic matrix, e.g., an operating manual and its associated power tool.  Such knowledge is fixed into matter at a specific time displaying its vintage. Personal & tacit labour is knowledge embodied in the natural Person who ultimately must decode and activate codified and tooled knowledge fixed or frozen in the operating manual and power tool.  Toolable natural resources are parts of the environment – geosphere and biosphere– that can be tooled to serve some human purpose, i.e., become subject to technology and enframed and enable to serve human propose. 

2.07         Personal & tacit, codified and tooled knowledge become final outputs of the economic process as the Person, Code and/or Tool.  Ultimately, however, all knowledge is personal & tacit with codified knowledge acquiring meaning and tooled knowledge acquiring function only through the mediation of a natural Person.  This is why Michael Polanyi entitled his masterwork: Personal Knowledge: Towards a Post-Critical Philosophy (1962a)


3.0 The Myth of the Creator

3.01          In pre-literate societies, knowledge was transmitted orally through the mnemonics of ritual and chant reinforced by religious practice and taboo.  Some knowledge was shared by all; some was shared in secret only with initiates (Eliade 1954).  The association of rhythmic or repetitively patterned utterances with supernatural knowledge endures well into historical times.  For example, among the early Arabic peoples, the word for poet was sha’ir, “the knower”, a person endowed with knowledge by the spirits (Jaynes 1978).  Innovation, i.e., application of new knowledge, depended upon the initial insight or invention of a creator plus the ability to maintain mnemonic integrity through time, e.g., as incantation or epic poem.  Cause and effect were indistinguishable.  It was through unchanging re-enactment of ritual that desired results were achieved.  Science and art were one.  How to make something and the thing made were mystically married.  Process and product were identical.  To name a thing was to magically control a thing.

3.02         In such societies, awe and mystery surround the created object into which the creator projects his or her spirit and soul.  In Japan (a First World country retaining many ancient animistic sensibilities), a sword, being a product of mental work, is regarded not merely as a material object, but as being imbued with the author's living spirit.  The result can arguably be seen in contemporary Japanese industrial craftsmanship.  Furthermore, objects of worship are not limited to visible and concrete things.  Even a word can have a spirit (Koisumi 1977, 12).  One cannot buy or sell such knowledge; only the material shell containing it.  Knowledge, in effect, is the soul-stuff of its creator.

3.03         In the ancient West and Islamic world (Habib 1998), knowledge was kept secret or, when made public, its paternity was protected by moral rather than legal rights (Chartrand April 2000). Ownership, in an economic sense, did not exist per se.  Punishment for falsely claiming paternity, or what today would be copyright or patent infringement, invoked defamation of the infringer and shame on family and tribe. 

3.04         After the fall of Rome, knowledge in the West became the preserve of the Christian Church.  In secluded, distantly separated monasteries surviving written works of the Ancient World were lovingly copied and preserved.  They provided the epistemological gold standard of secular knowledge in the so-called ‘Dark Ages’ while the Bible shed all the light thought necessary on God’s purpose.  Those who dared draw knowledge from the well of ancient nature lore, or ‘traditional ecological knowledge’ (TEK), were branded witches and warlocks while those who experimented with nature were branded alchemists and magicians.  Both were subjected to the same penalty: Burn the body, save the Soul!  Old ‘approved’ knowledge was revered; new knowledge was generally suppressed making ownership literally a metaphysical question. 

3.05         With the arrival of the ‘Renaissance Man’ in the 15th century, i.e., the artist/engineer/humanist/scientist, there began a distinct Western ‘Cult of the Genius’ (Zilsel 1918; Kristeller 1952, 510; Woodmansee 1984).  Genius demonstrates the god-like power of creating ex nihilo, ‘out of nothing’ (Nahm 1947).  These Renaissance giants, however, were also of humble birth (born below stairs) yet achieved noble ends – new knowledge, new creations and, unlike their medieval predecessors, they signed their names to their works.  This marked the first eruption of the individual Person out of feudal subordination by birth. 

3.06         In the 16th century, the Protestant Reformation recognized the individual’s direct link, through prayer, to a personal God rather than requiring intercession by Church, Pope, saint or priest.  In the 17th century, the experimental or natural philosopher joined the pantheon of Western genius.  As with the Renaissance painter who gave us a new way of seeing the world, representation through geometric perspective, this new philosopher changed the way we see the world and each other.  The simple household thermostat is an example.  Prior to its invention what was hot for me but cold for you was determined hierarchically.  With the thermostat, however, whether king, pope, priest or philosopher, it is 20 degrees Celsius.   Two centuries later, this metaphysical success led the poet Coleridge to ask the philosopher of science, William Whewell, to rename natural or ‘experimental’ philosophers.  In 1833, he did so, coining the term ‘scientist’ (Snyder 2000). 

3.07         In the 18th century, the author also joined the cult (Woodmansee 1984) contributing a flood of new knowledge igniting the “Querelle des Anciens et des Modernes”, i.e., the battle of the Ancients and the Moderns, marking the opening of the 18th century European Enlightenment (Kristeller 1952, 19).  Who are superior, the Ancients or the Moderns?  The answer: the Moderns.

3.08         By the end of the 18th century the Republican Revolution shattered feudal subordination, at least in the West, declaring all men equal.   Adam Smith lived to see the second republican revolution, in France, overturn the Ancien Regime replacing it with one of ‘liberty, equality and fraternity’.  He did not, however, like Bentham, live long enough to see both the American and French revolutions betrayed – the first by limiting the definition of ‘Person’ to what Canadian journalist Richard Gwyn has called ‘pale penis people’ and the second by self-righteous revolutionary zeal excusing terror as an instrument of freedom. 

3.09         In the 19th, the inventive genius of Watt was followed by Bell, Edison, Marconi, Morris and others who transformed the physical life ways of humanity.  Even Karl Marx, as genius, set the stage for a one hundred and fifty year long cry for workers of the world to unite.  And, about the same time as the first telephone call was made in 1876, the troubled and tortured artist starving in his garret became the spear point of an avant garde transforming the way humanity sees and hears its inner and outer worlds (Bell 1976).  And then, near end of the century, first Sigmund Freud and then Carl Jung shook the foundations of consciousness changing the way we see our own mind, not as a monad but as inhabited by competing complexes and archetypes.  And, in the 20th century, natural & engineering scientists donned the cape of genius as nuclear energy, followed by computers, genomics and space travel, caught the popular imagination with a fuzzy haired Einstein as its poster boy.  Today, in the 21st century, arguably the academic entrepreneur has now joined the club beginning yet another revolution, the Genomics Revolution, with significant potential implications for the very definition of a Person.

3.10         Out of this Cult of the Genius emerged what I call the Myth of the Creator (Chartrand Fall 2000) eloquently expressed by Zechariah Chafee: 

intellectual property is, after all, the only absolute possession in the world...  The man who brings out of nothingness some child of his thought has rights therein which cannot belong to any other sort of property. (Chaffee 1945)

Creation of new knowledge in all domains - the natural & engineering sciences, the humanities & social sciences and the Arts – became a public good to be fostered and encouraged so that all humanity might benefit from the creativity of genius. 

3.11         Like most myths this one contains some elements of truth.  Thus, in the European Civil Code tradition, the myth is reflected in moral rights of creators that are “inalienable, unattachable, impresciptible and unrenounceable” (Article 11, Decision 351, Andean Community, 1993).   Such rights echo back to ancient animism and are self-evident under the principles of ‘natural law’ (Taylor 1929, 1930), the root of the Civil Code.

3.12         However, unlike the Civil Code, Anglo-American Common Law, and its associated IPRs, is rooted in precedent rather than principle.  The result is that:

the complex body of law, judicial interpretation, and administrative practice that one has to grapple with in the area of intellectual property rights has not been created by any rational, consistent, social welfare-maximizing public agency.” (David 1992) 


4.0 The Private Domain

4.01         While this complex patchwork of legal rights defines ‘the private domain of knowledge’ in the Anglosphere (Bennett 2000), the very complexity of its organic juridical evolution is one reason why there has been very limited empirical economic analysis of IPRs (Besen & Raskind 1991, 4). Nonetheless, economic theory rationalizes IPRs as a response to market failure, i.e., when market price fails to internalize all benefits and costs of consumption and production, e.g., when market price does not include pollution costs.  These are known as external costs and benefits, i.e., external to market price.  IPRs, in this view, are created by the State as a protection of, and incentive to, the production of new knowledge which otherwise could be used freely by others (the free-rider problem). In return, the State expects creators to make new knowledge available and that a market will be created in which such knowledge can be bought and sold.  But while the State wishes to encourage creativity, it does not want to foster harmful market power.  Accordingly, it limits such rights in time and space.  They are granted, e.g., a patent, only with full disclosure of the new knowledge; only for a fixed period of time; and,, only for the fixation of new knowledge in a material form or matrix, i.e., it is not ideas but their expression fixed in a matrix that receives protection. 

4.02         All intellectual property (all knowledge) therefore eventually enters the public domain where it may be used by anyone without charge or limitation.  Even while IPRs are in force, however, there are exceptions such as ‘fair use’ or ‘fair dealing’ under copyright.  Similarly, national statutes and international conventions permit some research using patented products and processes. A Nation-State also retains authority to waive IPRs in “situations of national emergency or other circumstances of extreme urgency” (WTO/TRIPS 1994, Article 31b), e.g., following the anthrax terrorist attacks in 2001 the U.S. government threatened to revoke Bayer’s pharmaceutical patent on the drug Cipro (BBC News October 24, 2001). 

4.03         Nonetheless, the legal foundation of contemporary IPRs is that an idea, a.k.a. knowledge, is not protected but rather its expression fixed in a material form.  I will now examine the matrix and then consider major IPRs – copyrights & trademarks, patents & industrial designs, know-how & trade secrets - which define our ‘rights to know’ in the private domain of knowledge.      


The Matrix

4.04         A matrix is a “supporting or enclosing structure” (OED matrix, n I).  Traditionally, a legal matrix is tangible and perceptible meaning it can be seen, touched or otherwise perceived by a human being and has some permanence.  Finally, the expression so fixed must be original (copyright) or not obvious to one normally ‘skilled in the art’ (patents).  But why are ideas not protected? 

4.05         Justice Yates, in his dissenting opinion in the 1769 case of Millar v. Taylor, laid out the legal argument.  Drawing on the Institutes of Justinian (one of the sources of the Civil Code), he argued that ideas are not the object of property rights because they are like wild animals or ferae naturae that once set free belong to no one and everyone at the same time.  It is only their specific expression fixed in material form – commonly known as a work – that qualifies for protection (Sedgwick 1879).

4.06         What constitutes a matrix is problematic.  Examples drawn from the recent history of copyright in Canada and patents in the United States demonstrate. Under Canadian copyright until 1988, recorded extemporaneous music, i.e., music improvised and simultaneously recorded, did not qualify for protection because it was not “reduced to writing or otherwise graphically produced or reproduced” (Keyes & Brunet 1977, 40). The recording itself did not qualify as a matrix.  Similarly, until 1988, computer programs did not qualify because they were not perceivable by a human being (Keyes & Brunet 1977, 40).  Today, of course, the Microsoft business empire, among others, is rooted in software copyright. 

4.07         U.S. patent examples also demonstrate the role of case law in developing IPRs in the Anglosphere.  Unlike the Civil Code in which principles tend to be stable, case law is determined by judges whose reasoning influences subsequent interpretations of law by precedent.  In the case of genetic patents, the U.S. Patent Office thus denied patents to living material including genes until 1980. At that time the Supreme Court in Diamond v Chakrabarty reinterpreted existing law, i.e., there was no change in the law itself.  The case involved a patent for a genetically engineered microorganism that breaks down crude oil.  The Court observed that Congress had the power to limit such patents but by failing to legislate specifically about genetic patents it had, in effect, allowed gene patenting.  The Court’s rationale was based on the term ‘manufacture’ in Section 101 of the U.S. Patent Act: “the production of articles for use from raw materials prepared by giving to these materials new forms, qualities, properties, or combinations whether by hand labor or by machinery.”  Genes, the Court concluded, were material, i.e., they had tangible material form, even though invisible to the naked eye.

4.08         With respect to software patents, the Patent Office traditionally resisted patentability because computer programs were considered mathematical algorithms, not processes or machines.  In its 1981 decision in Diamond v. Diehr, the Supreme Court ordered the Office to grant a patent even though computer software was involved.  The Court found the program was not just a mathematical algorithm but rather a process, specifically for molding rubber.  By requiring that an invention be examined as a whole and the court found that an invention using a computer to manipulate numbers representing concrete or real world phenomenon is a process relating to tangible material forms and is patentable (Tysver 1998).

4.09         As demonstrated, a matrix originally needed to be perceptible, particularly by sight.  The law, being inherently conservative, concluded that if the matrix was not perceptible then it was not possible to assess other requirements for protection, e.g., originality, non-obviousness, usefulness, etc.  Thus ephemeral displays on computer screens prior to 1988 received no protection in Canada.  An electron might be a part of the physical world but if a lawyer could not see, touch or otherwise perceive it then it had no legal standing (Keyes & Brunet 1977, 129).

4.10         In effect, over time, instrumentation extending the human senses and grasp of the material world has been accepted by the Courts.  The implication is that there is no microscopic (or macroscopic) limit to intellectual property rights fixed in material form, only a technical one. 

4.11         Essentially a matrix has one of three functions – utilitarian, non-utilitarian or personal.  A utilitarian matrix corresponds to what I call a ‘Tool’ and is protected by patents & industrial designs; a non-utilitarian matrix corresponds to ‘Code’ and is protected by copyright & trademarks while a personal matrix corresponds to a Person (legal or natural) and is protected by know-how & trade secrets.


Rights to Know

4.12         While the matrix can be used to order intellectual property rights into generic categories – utilitarian, non-utilitarian and personal - the nature, scope and composition of each IPR is different.  Each provides the legal foundation for a distinctive industrial organization based on commercial exploitation of new knowledge.  Furthermore, each consists of a distinct and differing bundle of rights defining what forms of knowledge can be bought and sold, where it may be marketed, under what terms and conditions, and for how long such rights are enforceable before new knowledge enters the public domain. 

4.13         In what follows I will summarize the Anglosphere history of the six primary IPRs.  These are presented in groups of two based on a common matrix – designs & patents (utilitarian), copyrights & trademarks (non-utilitarian), and know-how & trade secrets (personal).  Only passing reference is made to Civil Code practice.  An additional class of IPRs is also discussed, sui generis or one-of-a-kind rights. 

4.14         There are, however, three general characteristics of the Anglosphere tradition colouring these histories.  The first concerns the origins of the Common Law of business.  The second involves the relationship of natural and legal persons.  The third involves the evolving definition of property itself, i.e., what can be bought and sold.

4.15         First, after the Statute of Monopolies of 1624 development of the Common Law was a process whereby the courts converted the customary bargains and business practices of guilds and corporations into a common law of property and liberty (Commons 1924, 229).  However, while “the monopoly, the closed shop, and the private jurisdiction were gone … the economics and ethics remained” (Commons 1924, 230).

4.16         Second, a natural person is a living human being; a legal person is a body corporate.  The vast bulk of productive assets are owned by fictitious legal persons such as corporations, companies, sociétés, Gesellschaften.  Such persons are birthed under incorporation statutes that allow them to engage in a wide variety of profit making and charitable activities.  In the Anglosphere, however, legal and natural persons have enjoyed the same rights since the late 19th century; under the Civil Code, however, they enjoy different rights.  It is with respect to knowledge that this difference is most apparent.  Thus Civil Code moral rights of creators, i.e., natural persons, are justified because their work bears the “imprint of personality” that a body corporate does not possess (Geller 1994).  To repeat myself, in this tradition such rights are “inalienable, unattachable, impresciptible and unrenounceable” (Article 11, Decision 351, Andean Community, 1993).  

4.17         Third, there is an important historical connexion between intellectual property rights and the modern definition of business property.  This involves evolution of property as ‘things’ – moveable or immovable – towards property as the intangible expectation of earning profit.  Two years before publication of the Wealth of Nations a momentous legal decision about knowledge and property was reached in 1774 by the Law Lords of England in the case of Donaldson v. Beckett.  The question was: Does an author have a natural and perpetual copyright?  The answer was no (Chartrand Fall 2000).  Beyond copyright, however, it contributed, according to John R. Commons, to our modern definition of property because:

The transition from concepts of physical things to concepts of business assets, could not be fully completed until the idea of ownership was shifted from the holding of physical things to the expectations of profit from the transactions of business. (Commons 1924, 275)

From this shift new legal and economically valuable business rights emerged including ‘good will’.  This trend may be approaching its apogee in the knowledge-based economy. 


Copyrights & Trademarks

4.18         Copyrights and trademarks use a non-utilitarian extra-somatic matrix to encode knowledge in a material form called a ‘communications medium’.  Media takes many forms including paper hardcopy and electronic softcopy.  It all cases, however, it is intended to be read or decoded by a natural person thereby becoming personal & tacit to that reader.

4.19         Copyrights are rights traditionally granted to creators of visual and literary works of art.  They have, however, been extended over time. They are granted to natural and legal persons.  When granted to a natural person it endures for the life of the artist/creator plus a fixed number of years, e.g., in Canada for fifty and in the United States for seventy-five years.  Copyrights granted to legal persons are also for a fixed number of years that vary between countries. In the Civil Code tradition, however, natural persons receive certain imprescriptable rights not available or transferable to legal persons, e.g., droit de suite or rights of following sales for works in the visual arts.  Some Civil Code rights have been adopted by Anglosphere countries, e.g., Canada, but remain transferable to legal persons by contract, extinguishing rights of the original creator.  Copyright cannot be renewed.

4.20         Until the 1980s, copyright was, in all Anglosphere countries, restricted to ‘works of art’.  With introduction of software copyright, however, utilitarian ‘machine-readable’ works received copyright protection for the first but probably not the last time.   While I disagree with this development I cannot pursue my reasoning at this time.

4.21         Two additional observations are in order. First, the first patent provision in the United States was a footnote to the copyright provisions of the 1784 South Carolina “Act for the Encouragement of Arts and Sciences.”  What makes this provision important is that it so closely coupled patent with copyright protection, assigning the former as most appropriate to “machines”, and the latter to “books”, with little difference in treatment.  The Constitutional Convention of 1787 was influenced by this Act and spoke also of securing exclusive rights for “Authors and Inventors” to “promote the Progress of Science and useful Arts”.  Neither copyright nor patents for invention were, however, explicitly mentioned (David 1992).

4.22         Second, there is the question of works by employees. Under Anglosphere copyright all works created by an employee are, unless by contract stated otherwise, the property of the employer.  The employee cannot even claim paternity to his or her work.  This is not the case under the Civil Code where paternity of the employee is preserved.  In the case of patents, any invention created during company time by an employee is, by contract, automatically licensed to the employer but the patent application must be filed in the name of the employee responsible, i.e., paternity is maintained.  This is the case in both the Anglosphere and Civil Code countries.

4.23         In the constitutional monarchies of the British Commonwealth, however, the State also exercises ‘Crown copyright’ over works created by servants of Her Majesty.  In the United States, there is no equivalent of Crown copyright but rather a tradition that since, tax payers paid for such work, they fall into the public domain. 

4.24         There is, however, one prominent Anglosphere exception to employer copyright: the university.  Following the tradition of academic freedom, copyright to works by professors is, by contract, theirs and theirs alone.  This exception has, arguably, resulted in the separation of the financial and career interests of scholars from that of their host institutions. Multinational communications conglomerates have, in effect, filled the gap between the two.  Four or five global firms now control copyright for the world’s most prestigious scientific journals written by academics employed by universities and colleges who often pay ‘page fees’ to have their works published.  In turn, their employers – the universities - now pay escalating library subscription fees for works authored by their employees.  This has resulted in a shrinking supply of periodical publications for students in all knowledge domains (The Economist, August 5, 2004).  In response, the Association of Research Libraries in the United States, among others, are developing web-based alternatives to ‘commercial’ academic publishing.

4.25         Trademarks (and marks of origin) are devices such as a word, logo or other mark pointing to the origin or ownership of a good or service that is reserved for the exclusive use of its owner as maker or seller.  Today, its application has, de facto, been extended to ‘domain names’ on the internet or world-wide web.  The World Intellectual Property Organization (WIPO) has thus established dispute settlement mechanisms to resolve ‘cyber squatting’, i.e. registering a domain name using the name or trademark of an established business enterprise or celebrity, e.g. Julie Roberts, with the intention of selling that registration to its recognized trademark holder for a profit.  At the international level, however, only the Common Industrial Property Regime of the Andean Community of 2000 makes explicit reference to web domain names (Chartrand 2001). 

4.26         The word ‘trademark’ entered the English language in 1838 (OED, trademark, n, a).  Functionally, however, it can be traced back to ancient times and in Western Europe from at least the 13th century including masons marks, goldsmiths marks, paper makers’ watermarks and watermarks for the nobility, and printers’ marks. While the 1618 case of Southern v How is considered the birth of commercial trademark law in England, the first national trademark legislation was enacted in France in 1857 followed by Britain in 1863.  In the United States, the first trademark legislation was passed in 1870 based on the patent and copyright clause of the Constitution. It was, however, subsequently repealed and replaced in 1881 with legislation based on the commerce clause of the Constitution.  This legislation was intended to allow trademarks to be used in commerce with foreign nations and Indian tribes (University of Texas Libraries 2004).  In Britain, the Trade Marks Registration Act of 1875 required a legal register of marks and the first Trade Marks Registry in the world opened in London in 1876 (UK Patent Office 2003).

4.27         Registration and the payment of fees are required.  A trademark is granted only for new marks so as not to confuse the public.  It is available to both natural and legal persons.  And, unlike other forms of IPRs, trademarks can be renewed, potentially in perpetuity.

4.28         While copyrights and trademarks share a non-utilitarian matrix they belong to two fundamentally different classes of rights.  The overtly commercial nature of industrial designs, patents and trademarks place them in a distinct legal category called ‘industrial property’, subject of the first international intellectual property rights convention, the Paris Convention for the Protection of Industrial Property of 1883 (Chartrand 2001). The ‘artistic’, ‘personal’ or ‘semiotic’ nature of copyright, by contrast, rooted in the European Civil Code tradition, is recognized in a separate set of international conventions beginning with the Berne Convention for the Protection of Literary and Artistic Works of 1886 (Chartrand 1998).  The difference was summed up by Keyes and Brunet:

Though copyright is expressed in terms of property, it is not directly analogous to industrial property (patents, trademarks and industrial designs), where the major concern is with the circulation of goods that have economic value apart from their intellectual content.  As it deals with purely intellectual matter, copyright can never interfere with a person’s physical well-being.  (Keyes & Brunet 1977, 3)


Designs & Patents

4.29         Designs and patents use a utilitarian matrix to embed or tool knowledge into a tangible material and functioning form.  Knowledge for design comes mainly from the Arts; for patents, mainly from the natural & engineering sciences.

4.30         Industrial design involves the arrangement of elements or details that contribute a distinctive aesthetic appearance rather than a function to a good.  In this sense there is a relationship between copyright protecting a work of art and industrial design.  Both involve aesthetics but in the case of a copyright the aesthetic element is fixed in a matrix that has no utilitarian value.  By contrast the aesthetic element of industrial design is fixed in a utilitarian matrix, e.g., a coffee cup without a design retains its function.  In addition, an original work of art tends to be unique while an industrial design is usually produced in large numbers.  This last distinction, however, is of diminishing significance with the maturation of the Media Arts as a distinctive artistic discipline.

4.31         Industrial design protection can be obtained by both natural and legal persons.  Industrial design emerges from the Arts.  It is important to note, however, that industrial design evolved from copyright in the British Commonwealth but from patents in the United States.  Design protection is granted for a fixed time period (for example, 14 years in the United States) after which the design enters the public domain.  Registration and payment of fees are required.  Industrial design cannot be renewed. 

4.32         The first design-related legislation in Britain was the Designing & Printing of Linen Act of 1787.  The Copyright of Design Act of 1839 extended protection to other textiles but it was not until the Design Act of 1842 that protection was extended to other manufactures including designs made up of functional elements (UK Patent Office 2001).  In the United States, an 1842 statute granted a design patent for new and original designs for a manufacture or printing on a fabric (Ladas & Parry 1999).  In the American case, industrial design protection thus developed out of patents. 

4.33         With respect to patents, since the 15th century governments in the West have granted legal protection, enforced by the coercive powers of the State, to those who create or make available new and useful knowledge to that State.  This reflected the emergence of the Renaissance artist/engineer/humanist to genius status.  At first import patents were granted to foreigners bringing new working knowledge to the kingdom (David 2001, 7). The first known English patent was granted by Henry VI to Flemish-born John of Utynam in 1449 for a method of making stained glass not previously known in England but required for the windows of Eton College.  Gradually such protection was extended to domestic inventors (UK Patent Office, 2004). 

4.34         Patents are granted for new and useful compositions of matter (e.g., chemical compounds, foods, and medicinal products), machines, manufactured products and industrial processes as well as to improvements to existing ones.  In some jurisdictions, patents can also be granted to new plant and animal forms developed through genetic engineering.  This includes asexually propagating plants, e.g., using cuttings.  Patents, unlike industrial design, emerge from the natural & engineering sciences rather than the Arts.

4.35         Through case law and amendment, U.S. patents have, over time, evolved into three types: patents of invention, design patents and plant patents.  In all cases, registration is required and fees must be paid.  To be patentable, an invention, design or plant must be novel, useful and, non-obvious “to one of ordinary skill in the art.”

4.36         A description must be deposited, in writing and drawings, sufficiently detailed to allow one of ordinary skill in the art to replicate the invention.  This insures that new knowledge enters the public domain while the rights of the inventor are protected. In the case of microorganisms, description can take the form of a deposit of a sample with an authorized depository. Patent protection is for a fixed period of time (in the U.S., currently 20 years from the date of filing) after which it enters the public domain.  It can be obtained by natural and legal persons.  In general, these terms and conditions hold in all countries in the Anglosphere tradition.  Patents cannot be renewed.

4.37         The term ‘patent’ entered the English language in the 14th century.  Patents for invention were originally just one form of monopoly granted by the British Crown. Such grants were signified by Letters Patent, i.e., open letters, marked with the King’s Great Seal.  

4.38         By the time of James I, abuse of the monopoly system had become so great that Parliament enacted the Statute of Monopolies d in 1624.  It made all patent monopolies illegal except for “any manner of new manufactures within this Realm to the true and first inventor”.  Furthermore, such monopolies could not be “contrary to the law nor mischievous to the State by raising prices of commodities at home or hurt of trade”.  For some 200 years the patent system in Britain developed through case law without statute.  It was not until the Patent Law Amendment Act of 1852 that a formal patent act came into existence (UK Patent Office, July 13, 2004).

4.39         The first U.S. patent act: “An act to promote the Progress of Useful Arts” - was passed in 1790.  Its legal status was based, however, on Article 1, Section 8, Clause 8 of the 1787 Constitution of the United States which states:

Congress shall have power ... to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.


Know-How & Trade Secrets

4.40         Know-how and trade secrets use a person – natural or legal - to embed knowledge in material form.  Secrecy is used to protect both types and in most countries there is no formal statute.  Trade secrets and know-how are the least formalized of all intellectual property rights. 

4.41         The term “know-how” entered the English language in 1838 (OED, know-how). It refers literally to knowing how to do something, e.g., how to run a construction project.  It includes knowledge and experience of an administrative, commercial, financial or technical nature used in running a business or performing a profession.  It is experiential in nature, i.e., it is acquired through practice and experience.  It also tends to be ‘personal & tacit’ rather than ‘codified’ and embodied in an individual rather than in an external matrix.  In most countries, know-how is protected by contract binding employees and other agents to confidentiality.  When a natural or legal person (including a government) discovers that know-how has been revealed by an agent without permission, legal recourse is available through breach of contract before the courts.  No registration is required.  Know-how can be protected without time limit. 

4.42         Trade secrets involve information of a technical or commercial nature that is not in the public domain nor generally available.  It may be a formula, pattern, physical device, idea, process, compilation of information or other information that provides a competitive advantage in the marketplace. It is generally protected by contracts that bind employees and other agents to confidentiality. Normally the courts require that a trade secret be treated by its owner in such a manner that it can reasonably be expected to prevent the public or competitors from learning about it except by improper acquisition or theft.  In the case of electronic data this includes using encryption and “password” technologies.  The most famous trade secret is the formula for Coca-Cola.  A trade secret may be embodied in written or other codified form or it may be personal & tacit in a natural person.  No registration is required.  There is no time limit as long as it remains secret. 

4.43         While know-how and trade secrets are often used as synonyms they need not be so. In the case of management and franchises, for example, know-how is usually accessible to third parties when being used.  Single elements may be kept secret but the overall concept cannot be.  Where in a nation’s judicial hierarchy infringement of trade secrets or know-how may be heard varies, e.g., in the United States it is at the State level.  Some international conventions, e.g., TRIPS and the Andean Pact Industrial Property Convention recognize infringement of both.  In effect, when a senior executive moves from a company in one country to one in another signatory country, an international ‘legal’ lobotomy is in force; the executive and new employer may both be held liable for any infringement. 


Sui Generis Rights

4.44         Sui generis in Latin means “of its own kind”.  There are a number of recognized sui generis property rights.  The United States, in particular, has made extensive use of such rights including: breeders’ rights for lines of plants and animals generated using pre-genomic selective breeding technology; a special depository right for microorganisms in lieu of traditional patent requirements of a written description and drawings; special rights for visual artists of recognized stature; special rights for architectural works; and, special rights for integrated circuit typographies, the so-called ‘Chip Protection Act’.  The European Commission’s Directive on the Legal Protection of Databases is another example of:

a new form of copyright in databases, one that extends to contents previously in the public domain and otherwise not copyrightable.  It narrowly restricted the application of the principle of allowing exclusions for “fair use” in research, and it permitted virtually indefinite renewal of copyright protection for databases without requiring the substantial addition of new and original content.” (David 2000, 6)

4.45         It can be anticipated that many new sui generis rights will emerge as nations compete by combining different elements drawn from their own traditions governing copyright, designs, patents, trademarks, trade secrets & know-how.  The only constraint under the WTO and other international trade rules is national treatment.  This concludes our brief historical survey of the private domain of knowledge.   


5.0 The Public Domain

5.01         In a sense the public domain is an unexplored country whose borders can be outlined but whose interior remains unknown, unexplored and uncharted.  Thus James Boyle notes that the 2001 Duke University law conference on the public domain was “the first conference on the subject” (Boyle 2004a, 1). Furthermore, he identifies David Lange’s 1981 article “Recognizing the Public Domain” as having “really initiated contemporary study of the subject” (Boyle 2004b, 59).  In this unknown country resides the vast bulk of human knowledge acquired throughout human experience including pre-history.  To paraphrase Rosenberg on science, the body of knowledge called the public domain consists of an immense pool to which small annual increments are made at the frontier.  The true significance of the public domain is diminished, rather than enhanced, by extreme emphasis on the importance of the most recent increment to that pool, e.g., IPRs (Rosenberg 1994, 143).

5.02         For the competitiveness of nations in a global knowledge-based economy, such ignorance cannot continue.  To cure it, however, requires looking at the public domain from a number of different perspectives and interpreting findings as symbolic of a more numinous meaning (Neumann 1954, 7).  Put another way: “A definition can be but one of many definitions, each surely a function of perspective and agenda” (Lange 2004, 463).  At this time, I will examine the public domain as:

· economic commons;

· legal principle and precedent, and,

· constitutional & cultural history.


Economic Commons

5.03         Like technological change in economics, the public domain is, in law, treated as a residuum.  Thus in economics after the contribution of changes in capital, labour and natural resources to growth has been calculated, the residual is called ‘technological change’.  In law, after new knowledge has been ‘privatized’ as intellectual property, what remains is the public domain (David 2000, 15). In this sense, the public domain is the opposite of property (Boyle 2004a).

5.04         Extending the parallel, the public domain is where knowledge is at home as a public good, i.e., non-excludable and non-rivalrous, acting like disembodied exogenous technological change.  Everyone has the right to know; it falls from heaven like manna (Scherer 1971, 347).  Knowledge covered by intellectual property rights, on the other hand, is rivalrous and excludable by law, if not by nature.  It is embodied (fixed) in a work of aesthetic or technological intelligence that is the possession of its creator (or, more usually a corporate proprietor) who determines access and application.  To put it another way, where intellectual property rights privatizes or encloses new knowledge (Boyle 2004b) and limits access through price and other mechanisms, knowledge in the public domain is free to all without cost or restriction. 

5.05         The public domain is a knowledge commons (David 2000).  In general, an economic commons is a natural resource shared by all but owned by none.  Problems of over-use and depletion of common resources, e.g., fish in the seas beyond the territorial limits of any Nation-State, has been called the “tragedy of the commons” (Hardin 1968).  Mainstream economics recommends creation of property rights, i.e., privatize ownership of the resource to guarantee its survival through the operation of self-interest on the part of its new owner or owners (e.g., Demsetz 1967).  

5.06         This argument finds expression in the encouragement of new knowledge through intellectual property rights that, in effect, privatize new knowledge.  The rational is that given the public goods nature of knowledge, a producer cannot capture revenues to cover cost, let alone earn profits, in the absence of such protection. The resulting monopoly, e.g., copyrights and patents, can be justified, however, by full public disclosure of new knowledge, e.g., through full patent application disclosure or publication and its eventual total absorption into the public domain.  Society benefits because expansion of the public domain enriches the knowledge base of everyone who wants to know, i.e., learning.

5.07         The public domain, however, is unlike any natural resource commons.  Most obviously, the public domain is artificial - it is human-made.  And, as Herbert Simons stresses, there is a need for a clear epistemological distinction between the sciences of nature and “the sciences of the artificial” (quoting Simons Layton 1988, 91).  Similarly, a clear distinction must be made between the economics of the public domain of knowledge and of natural resources. 

5.08         In many ways the public domain is the inverse of a natural resource commons.  First, use of the public domain does not reduce the quantity of resources available to others.  Second, in its normal state the public domain grows and will continue to grow until the collapse of human civilization in its contemporary incarnation.  Such growth may be slowed by IPRs and other impediments but the biological need to know insures growth of the public domain.  Third, while there can be no subtractions from the public domain through use, additions are not simply additive.  Rather, additions combine with existing knowledge mutating and generating yet more new knowledge.  Or, in terms of Isaac Newton’s famous aphorism: “If I have seen further it is by standing on the shoulders of Giants.”  The public domain is not a domain of scarcity but of fertile abundance.  In this sense the public domain, unlike any natural resources commons, also exhibits increasing returns to scale.


Legal Principle & Precedent

5.09         Paul David has observed that intellectual property rights have not been created “by any rational, consistent, social welfare-maximizing public agency” (David 1992).  The resulting IPR regime he characterizes as ‘a Panda’s thumb’, i.e., “a striking example of evolutionary improvisation yielding an appendage that is inelegant yet serviceable” (David 1992).  In the case of the public domain, he observes that “what it contains is not defined and legal ‘rights’ to its use are not delineated” (David 2000, 15).  This legal lacunae is the result, I argue, of an inherent clash between the public domain as a legal principle and legal precedent.

5.10         The term ‘public domain’ entered “Anglo-American copyright discourse through the French of the Berne Convention” in 1886 (M. Rose 2003, 84).  The public domain is thus rooted in the European Civil Code based on principle rather than precedent.  In turn, the Civil Code draws heavily on the old Roman law especially the Institutes of Justinian from which Justice Yates argued that ideas are like wild animals belonging to everyone and no one. Observing the relative lack of interest in the concept of common property over the last three hundred years of Anglosphere legal tradition, Carol Rose has tried to revivify Roman concepts of public property lacking in the English-speaking tradition.  In effect, she concludes that the evolution of Anglosphere law has been dominated by questions of private, not public property (C. Rose 2004). 

5.11         There are five categories of public property under Roman law: res nullius, res communes, res publicae, res universatitis and res divini juris.  To begin, the Latin word res means ‘thing’.  Res nullius refers to things that are unowned or have simply not yet appropriated by anyone such as an unexplored wilderness.  Res communes refers to things that are open to all by their nature, such as the oceans and the fish in them.  Res publicae refers to things that are publicly owned and made open to the public by law.  Res universitatis refers to things that are owned by a body corporate, i.e., within the group such things may be shared but not necessarily outside the group.  Finally, res divini juris (divine jurisdiction) refers to things ‘unownable’ because of their divine or sacred status (Kneen 2004).

5.12         While arguably knowledge exhibits all five characteristics, for now, I restrict myself to contending that the public domain derives from such Roman legal concepts. They are not, however, the underlying source of Anglosphere usage.  Precedent is its source.  In this case precedent is two-fold.  First, import patents were first introduced in 15th century England to increase the national knowledge-base (the economic public domain) and hence competitiveness. They were granted for fixed periods (usually 14 years corresponding to two generations of apprentices who could work for the foreign ‘inventor’ but not compete).  After the patent lapsed the knowledge became competitively available to the third generation and beyond, i.e., the knowledge entered the economic public domain (David 1992).

5.13         Second, as will be described in greater detail below, copyright began in the 15th century as a licensing law for a new technology: the printing press and its entrepreneurial owner – the printer.  Licenses were required for everything printed in order to prevent heresy and sedition.  It quickly became apparent to the Tudor monarchs that it was easier to control a limited number of presses than a large number of subversive or heretical authors.  A hand written manuscript could, after all, be read by relatively few; typeset copies, on the other hand, could be read by and corrupt many.  Copyright licenses granted to printers were perpetual, at the pleasure of the Crown.  No rights were granted to the author other than a one-time honoraria.

5.14         Three conclusions can be drawn.  First, in the Anglosphere tradition the public domain is what the government of the day says it is, i.e., it is a political decision, it is not ‘natural law’ based on principle.  Second, the public domain constitutes the shared or common knowledge-base of the national economy.  Third, flowing from the first two, the Anglosphere public domain is continually threatened by the monopolistic tendencies of printers and their corporate proprietary descendents.  In a sense, the Anglosphere public domain is a triumph of precedent over principle.  To understand why, however, requires a different focus, that of constitutional and cultural history of the public domain of knowledge.


Constitutional & Cultural History

5.15         After crushing the royal prerogative over patents with the 1624 Statute of Monopolies, for some 200 years the patent system in Britain developed through case law without statute.  It was not until the Patent Law Amendment Act of 1852 that a formal patent act came into existence (UK Patent Office, 2004).  The first U.S. patent act: “An act to promote the Progress of Useful Arts” - was introduced in 1790.  In both countries, however, there was no perceived conflict between the patent monopoly and the public domain because of its relatively short duration after which any embodied or tooled knowledge entered the public domain growing the national knowledge-base.  This relatively quiet development was not, however, the case with copyright whose development is intimately linked to freedom of the press, the public domain, popular democracy, privacy and our rights to know in general, i.e., our information democracy..

5.16         The word ‘copyright’ itself entered the English language only in 1735 (OED, copyright).  Nonetheless, with the introduction of William Caxton’s printing press (the first engine of mass production) in 1476, the first copyright law was, in effect, introduced (Chartrand Fall 2000).  Under Common Law, many rights initially derive from inscribing or copying one’s name and explaining one’s ‘title’ to property on a register.  Thus in medieval England to obtain the right to farm a particular piece of land, one’s name had to be inscribed or written, by oneself or a scribe of Church or State, on a register of tenants.  This was, and still is, called ‘copyhold’ to the land. With introduction of the printing press, licensing laws required printers to inscribe their name, location and titles of works they wanted to print on a register. If approved by the Crown for publication, a copye was granted to the printer.  The rights flowing from this copye constituted “copyright” and were held in the name of the printer, not the author.  This copyright was perpetual, held at the pleasure of the Crown. “The question of rights of authorship was largely disregarded, since much of the demand was for extant works (like the Bible) that were in the public domain, and whose authors - even when identified - were long since dead” (David 1992).  As for living authors, they were treated according to the Renaissance tradition of the honorarium, i.e., an initial one-time payment extinguishing all rights to the work (Woodmansee 1984, 434).  Under contemporary copyright, this is called an ‘all rights’ or ‘blanket license’.

5.17         The religious wars that swept over Western Europe after the Protestant Reformation of the 16th century reached England but took a peculiar constitutional as well as religious twist: Caesarpapism.  German Protestants fought against the Petrine Doctrine of the Church of Rome claiming the Pope as successor of St. Peter.  In England, however, Henry VIII broke with Rome using the competing Caesaropapism Doctrine of the Byzantine Church claiming the king as God’s anointed on earth in the tradition of King David, i.e., the Divine Right of Kings (Cantor 1969, 55, 90). In one stroke, Henry VIII achieved what had eluded western Europe since the fall of Rome – the marriage of Church and State. He followed up with an official translation of the Bible into English which was published in 1539.  This literary break with Latin was only finalized, however, with the King James’ version in 1611 which became The Great Code of the English language (Frye 1981). 

5.18         Thus, unlike continental Europe, England fractured into three not two warring camps: Catholic, Protestant and Anglican or Church of England.  This trinary power struggle for the soul of England was to have profound implications for the development of the natural experimental sciences; definition of the public domain as freedom of the press; tolerance of religious difference; and, in the United States, constitutional separation of Church and State.

5.19         In 1557, Queen Mary granted a charter to what became the Company of Stationers of London.  Stationers’ Copyright was based on royal prerogative or letters patent covering the entire publishing industry as an estate. This monopoly was assigned to members as a freehold interest.  No consideration was given to author’s rights.  The Stationers’ Company was the only monopoly to escape dissolution under the Statute of Monopolies in 1624.  The reason was its political utility in fostering political and religious orthodoxy (Patterson 1993).

5.20         From the death of Henry VIII, England entered a time of troubles.  Each ruler – the Catholic Mary, Anglicans Elizabeth I & James I, quasi-Catholic Charles I, Puritan Cromwell, quasi-secular or sensualist Charles II, Catholic James II and the first constitutional monarch, Queen Anne – faced opposition from two-thirds of the population and struggled to maintain political and religious control.  By restricting freedom of the press they tried to limit what could enter the public domain of thought and debate.  The instrument of control was the licensing law that maintained perpetual copyright for the Stationer’s Company.

5.21         Two key developments are of relevance.  The first was the Restoration of the monarchy in 1660 and the constitutional and cultural compromises that accompanied it.  The second was the Glorious Revolution of 1689 that installed Queen Anne as the first constitutional rather than ‘divine’ monarch followed by passage of the first modern copyright act, the Statute of Queen Anne of 1710. As will be seen these developments continue to haunt contemporary policy debate about intellectual property rights, our rights to know as citizens and the global knowledge-based economy.

5.22         First, during Cromwell’s Commonwealth or Protectorate, the Protestants or Puritans were the titular winners but they were divided into many squabbling sects and could not agree among themselves.  Cromwell, as Lord Protector, tried to mitigate their differences as well as those of Catholic and Anglican citizens.  In the end, however, he gave up and approved the Restoration of the monarchy after his death. It was during the Protectorate, however, that the great Latitudinalist compromise of Robert Boyle was made (Jacob 1978; Jacob & Jacob 1980).  Theologically, Boyle freed Anglican, Catholic and Protestant to read God’s other book, the book of nature using the new experimental philosophy.  His success was marked by Charles II chartering the Royal Society in the year of the Restoration 1660. It was also during the Protectorate that the living author began to compete with the ancients and John Milton in his 1644 Areopagitica (1608-1674) began the cry out for freedom of the press. Subsequently, John Locke (1632-1704), in his Memorandum of 1694, argued for freedom of the press and against both Stationers copyright and perpetual copyright for the author.

5.23         Second, the final constitutional battle between the Monarchy and Parliament occurred with “The Glorious Revolution of 1689” when the last of the Stuart monarchs, the catholic James II, was deposed by an Act of Parliament and replaced by his ‘protestant’ daughter Mary and her consort William of Orange.  The resulting ‘Bill of Rights’ established free speech in Parliament marking the beginning of a ‘free press’ in England.

5.24         In 1695 the last of the Licensing Acts lapsed. Government control was henceforth limited to post-publication libel law.  Suspension further spurred development of a free press that could publish without prior consent of the authorities.  Without the Licensing Act, however, the Stationer’s Company perpetual copyright also lapsed and a rival appeared on the horizon – Scotland.  While England and Scotland had been under the same monarch since 1603 they remained separate countries with separate legislatures and separate laws.  This meant that the Stationer’s Company’s copyright did not have force in Scotland.  As long as the licensing laws were in place London booksellers could limit the competition. With their expiration, competition began to grow.

5.25         There were many attempts by the Stationer’s Company to restore the old licensing system in the late 1690s and early 1700s, but it was not until 1710 that a new copyright system came into force.  In fact between 1695 and 1710, Scottish and domestic ‘pirates’ made it increasingly difficult for London booksellers.  Without the protection of a Licensing Act, any pirate could take a successful work, re-typeset it and then sell it at a much lower price with no payments for the author, to the editor or for promotion.

5.26         An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned, more commonly called the Statute of Queen Anne of 1710, had three objectives.  First, it was intended to prevent any future monopoly of the book trade.  Second, it was intended to draw Scotland under a common copyright law and thereby to resolve the piracy controversy.  Third, it was intended to encourage production and distribution of new works.  The vehicle chosen to achieve all three objectives was the author.

5.27         Until the Statute, the author had no economic and limited moral rights to a work after it was sold.  Generally, a work was bought outright by a printer/bookseller/publisher for a flat one-time fee much like an all-rights or blanket license today. No royalties flowed to the author from subsequent sales.  They did enjoy certain ‘moral rights’ including the right not to have the text changed and the right of attribution.  Such rights, however, were based on ethical practices of the printers’ guild, not law.

5.28         The Statute of Queen Anne is considered the turning point in the history of copyright because it was the first law to formally recognize an author’s rights and, more importantly, it ended prior government censorship through pre-publication licensing of works.  Recognition of an author’s rights by the Statute was, however, principally a device to attain its primary objective - abolition of the Stationer's monopoly (Feather 1988, 31-36).  In effect, it was a trade regulation bill and did not recognize inherent and inalienable rights of the author (Shirata 1999).

5.29         In the end, the Statute of Queen Anne granted an extension of the existing copyright monopoly of the Stationer’s Company for 21 years and granted an exclusive right for new works for fourteen years with an option to renew for the same period.  Furthermore, the Statute recognized the author as the initial copyright holder to encourage “learned men to compose and write useful books”.  However, it also explicitly recognized the financial interests of “proprietors” who, by sale or assignment of the author's initial copyright, were almost invariably printers/booksellers/ publishers.  

5.30         The Stationer’s Company, however, did not give up.  The London booksellers told tragic tales of piracy ruining honest businessmen, their wives and children.  Literary works were the inheritances of innocents and pirates were, in effect, stealing food from the mouths of babes.  These tales of piracy were adopted not just by the booksellers but also by those advocating authors’ rights and were used to illustrate the implications of lax copyright protection for authors. It is important to keep this distinction in mind: printer’s copyright vs. author’s rights. The episode was called ‘the Battle of the Booksellers’ (Shirata 2000).

5.31         A number of cases were brought to court by printers/ booksellers/publishers during the 1750s and 1760s to gain recognition of a common law copyright independent of the statutory rights established by the Statute of Queen Anne.  Publishers argued that an author is entitled to enjoy the fruit of his labor, just like all other forms of property - in perpetuity.  A publisher, being merely an assignee of the rights of the author, should therefore also enjoy such rights in perpetuity independent of statute.  It was not, however, until 1769 that a legal decision was rendered on the issue in Millar v. Taylor.  Lord Justice Mansfield decided, with the majority, in favour of an author’s perpetual copyright while Justice Yates, as has been seen, opposed it. 

5.32         Sir William Blackstone contributed to the plaintiffs' cause.  Blackstone had previously published Commentaries on the Laws of England in 1767 in which he interpreted copyright for the first time as a legal concept (Blackstone 1771, 400-407).  Using Lockean natural law theory (Locke 1690), he described copyright as a kind of personal property in common law on the ground that any kind of published work is based on the author's brainwork.  This became known as ‘the sweat of the brow’ theory.  Of course, in his 1694 Memorandum, mentioned above, Locke explicitly rejected perpetual copyright.

5.33         The plot of the booksellers was, however, ultimately defeated in 1774 by the decision of the House of Lords in Donaldson v. Beckett.  It was this decision that established the basic concept of Anglosphere copyright. When an author fixes his creation in a tangible medium, he obtains a common law right that is eternal in nature.  However, he looses this common law right with publication, or, ‘dedication to the public’.  In effect, the House of Lords accepted the dissenting opinion and reasoning of Justice Yates in Millar v. Taylor:

5.34         What is at issue is that the living author had attained the status of genius, someone who produces with god-like powers out of nothing (Woodmansee 1984).  However, the reward for such genius was qualified by Enlightenment rights of the public at large (M. Rose 2004, 76). Thus while in a sense the work of the artist, author or inventor was god-like and qualified as res divini juris, they were also res communes - open to all by their nature and res publicae publicly owned and made open to the public by law. 

5.35         The change, however, was less a boon to authors than to publishers because it meant that copyright was to have another function.  Rather than simply being the right of a publisher to be protected against piracy, copyright would henceforth be a concept embracing all the rights that an author might have in a published work.  And since copyright was transferable by contract to the publisher, the change meant that the copyright proprietor would enjoy any new rights granted the author by appropriation (Patterson 1968).

5.36         Thus, what started out in 1710 as a statutory device to regulate the book trade, prohibit monopoly and end pre-publication censorship, was transformed, at least in the popular imagination, into a ‘natural law’ for the encouragement, protection and reward of authors.  In reality, however, author’s rights - economic and moral – were effectively sacrificed to the pecuniary interests of proprietors.  Once a work was typeset and published the author’s Common Law rights vanished like a wild animal into the forest leaving behind a proprietor enjoying the rights and privileges granted by an admittedly now time limited monopoly.

5.37         It has been argued that the public domain only came into existence with the end of perpetual copyright (M. Rose 2004).  And this was the state of English law in 1776 after which the laws of England were transformed into the Common Law of a post-revolutionary United States of America.  While there were Licensing Acts in most of the colonies, before the 1780s only Massachusetts had a formal copyright statute.  There were three reasons.

5.38         First, despite the fact that works of American authors were published in America, the number of works was limited and a large proportion of the American market was dominated by British authors.  Second, authors in the colonies were usually also editors and publishers themselves. There was a sentiment or trade rule called “courtesy copyright” or “mutual obligation” among publishers, which effectively suppressed piracy.  Third, there was little or no conflict of market share among publishers on account of the extensive and growing American market.  The market was also strictly segmented.  Each publisher often supported a specific political group (Shirata 2000).

5.39         A year before the House of Lords made its decision on Donaldson v. Beckett, the Boston Tea Party marked the beginning of the American Revolution.  Between 1773 and 1783 the United States was at war with Great Britain and there was no trade between the two – including in law books and legal decisions.

5.40         Accordingly, the last major copyright decision of the British courts current in legal circles in the United States was Millar v. Taylor of 1769.  The majority opinion penned by Justice Mansfield - that there was a ‘natural’ perpetual author’s copyright - held sway unqualified by the subsequent decision of the House of Lords in Donaldson v. Beckett.

5.41         As the revolutionary war played itself out the publishing industry in the colonies increasingly turned towards American authors.  However, the trade courtesy that protected printer/publishers afforded no protection to authors. Some authors began to lobby for ‘copyright’ protection confusing ‘author’s rights’ with the traditional copyright granted to printers.

5.42         The framers of the United States Constitution, suspicious of all monopolies, knew the history of copyright as a tool of censorship and press control.  They wanted to assure that copyright was not used as a means of oppression and censorship in the United States (Loren 1999).  This consuming fear of monopoly and censorship is captured in the words of Thomas Jefferson: “I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man” (Letter to Dr. Benjamin Rush, September 23, 1800.

5.43         And, with respect to the copyright monopoly and the 1774 reasoning of Chief Justice Mansfield in Millar v. Taylor, in particular:

Thomas Jefferson, in 1788, exclaimed: “I hold it essential in America to forbid that any English decision which has happened since the accession of Lord Mansfield to the bench, should ever be cited in a court; because, though there have come many good ones from him, yet there is so much sly poison instilled into a great part of them, that it is better to proscribe the whole.” (Commons 1924: 276)

5.44         The US Constitution was adopted in 1787 and ratified a year later. Article I, Section 8 of the Constitution is now known, alternatively, as the ‘Intellectual Property’, ‘Copyright’ or the ‘Exclusive Rights’ Clause (Benkler 2004) and states:

The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

5.45         The importance of the clause is evidenced by the fact that the power to promote ‘progress’ was one of very few powers to regulate commerce initially granted to Congress.  Two years after ratification of the US Constitution, Congress passed the first Copyright Act of 1790: An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned.  Two things are important with respect to the title of the Act.  First, Article 1, Section 8 of the Constitution assigns rights to ‘Authors and Inventors’ reflecting the proximity of copyright and patents and its relationship to the natural person as genius.  The 1790 Act, however, assigns rights to ‘Authors and Proprietors’. As in England, author’s rights were compromised in favour of the pecuniary interests of proprietors who, subsequently, increasingly became bodies corporate or ‘corporations’. The Common Law fiction that natural and legal persons have the same rights thus allows bodies corporate to hold copyrights justified as a reward for individual creativity.

5.46         Second, its title derives from the Statute of Queen Anne justifying the ‘securing the Copies’ as an encouragement for learning among the people. The importance of ‘learning’ led to the ‘Fair Use’ clause of the U.S. Copyright Act limiting copyright even during its duration.  In the simplest terms, it means nonprofit, non-financially damaging copying is fair use.  This provision allows public libraries, educational institutions and individuals to lend or copy works without paying royalties and avoid copyright infringement. This encouragement of learning, of course, amounts to increasing the personal & tacit knowledge-base of the nation, i.e., of the public domain. 

5.47         Arguably, the First Amendment of the U.S. Constitution is directly related to copyright and hence to an Anglosphere concept of the public domain (Alstyne 2004):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

5.48         The historical connection between the two is the pre-Statute of Queen Anne Licensing Acts which were used to control the press, restrict religious and political debate and thereby the public domain.  These, at one and the same time, were used to restrict the press and maintain the perpetual copyright of the Stationer’s Company.  In this sense, the First Amendment can be seen as a sibling of modern copyright with both serving to define the public domain.  David Lange takes this argument further arguing that the public domain itself should be recognized as having a status analogous to citizenship with affirmative rights. “I want the public domain, however it may be defined, to secure these elemental aspirations which I believe innate in human kind: to think and to imagine, to remember and appropriate, to play and to create (Lange 2004, 483).  

5.49         To any mapping of the public domain charted by the First Amendment and the Copyright Act one must add the more recent Freedom of Information Act that makes all government information part of the public domain unless national security or commercial confidentiality are involved.  This last caveat ‘commercial confidentiality’ opens onto yet another tributary, this one within the domain of the Security & Exchange Commission and the Department of Commerce.  And the list goes on and on and has been replicated, with variations, across the Anglosphere.

5.50         Unless the public domain as legal principle is reconciled with the public domain as legal precedent, Lange’s vision will, however, remain unrealized.  In fact, the progressive extension of the term of copyright in the United States, now exceeding 100 years – life of the author plus 75 years – suggests, however, that de facto perpetual copyright has already returned.  This sense is enhanced by the ubiquitous spread of all rights or blanket licenses that extinguish a creator’s rights in favour of corporate proprietors who continue to press for more rights in order to preserve the starving artist.  Increasing concentration of the media adds its own distinct monopolistic flavour to a brew that may realize Thomas Jefferson’s worst fears about copyright.  

5.51         The situation in the constitutional monarchies of the British Commonwealth, however, is even more problematic. Unlike the United States with its constitutional separation of powers, a central principle of constitutional monarchy is ‘the indivisibility of the Crown’.  Power flows down in the name of Her Majesty, not up from the people as in republican systems. In federal constitutional monarchies such as Australia and Canada this indivisibility applies at the jurisdictional level, e.g., the province of Saskatchewan in right of Her Majesty is indivisibly linked to the Dominion of Canada in right of Her Majesty.  Similarly, the executive, legislative and judicial branches are subject to Her Majesty.  As well, all private persons and property are subjects of Her Majesty. There can, accordingly, be no absolute private property rights.  Everything and everyone is subject to the pleasure of Her Majesty.  In political terms, this means, for example, that a ‘Bill of Rights’ such as the Canadian Charter of Rights and Freedoms, unlike the American First Amendment, is, in effect, subject to a ‘notwithstanding’ clause that allows a parliamentary or legislative majority ratified by Her Majesty’s representative - the Governor General of the nation, or the Lieutenant Governor of a Canadian province - to abrogate any and all rights contained therein including a free press and the public domain.   

5.52         In summary, there is an historic and continuing legal link between intellectual property and political rights, embodied in the U.K. by the ‘Bill of Rights’ of 1689, and, in the U.S., by the First Amendment to the Constitution.   This linkage can be called ‘the public domain’.  The concatenation of rewards for creativity, political rights including the right to know and proprietary profit flowing from the distribution of knowledge as property provides the backdrop for the very political economy of the public domain.


6.0 Political Economy of the Public Domain

6.01         The political economy of the public domain is like a dance performed by four principles: the creator, proprietor, user and government.  The nature of the dance is summed up in the first reported case of copyright infringement in English history.  In 567 of the Common Era, an Irish monk (later ‘Saint’ Columba of Iona) visited a neighboring monastery.  Therein he copied - without permission - the Abbott's Psalter.  When the Abbot found out he demanded the offending copy be turned over to him; Columba refused. The Abbott appealed to the King who ordered the infringing copy to be delivered to its rightful ‘proprietor’; Columba complied (Beck 1998).

6.02         In the beginning there is a creator of an original work (alive or dead) whose thoughts, images, sounds, etc., are fixed in an extra-somatic matrix, e.g. the Abbot’s Psalter.  The work is then purchased, or ‘licensed’, by a new owner (Statute of Queen Anne) or proprietor (U.S. Copyright Act) of the work as distinct from its creator, e.g., the Abbot.  The proprietor buys the work not for its own sake but rather to earn a profit or, in this case blessings through controlling access by third parties, i.e., distribution to users like a visiting monk.  As long as the ‘copy’ has to be laboriously made by hand then access is easily controlled and the ‘right to copy’ not difficult to enforce.  In the case of the Abbot’s Psalter, the real question is therefore how Columba’s efforts escaped notice until the work was completed.  Was it deliberate?  We will never know but the fact is the Abbot ended up with two copies and never became a saint.

6.03         The user, of course, is the ‘public’ – individual and institutional - in the interest of whose ‘learning’ the work is originally intended by the creator.  In the case of the Abbot’s Psalter, the public included all potential readers of Columba’s copy over whom the Abbot would have no control (and from whom he would receive no blessings) if the copy was not delivered up to him.   

6.04         The fourth principle of the dance is the State, or in Columba’s case, the King. The State is responsible for the well being of all citizens including creators, proprietors and users.  In effect, the State is the choreographer of the dance.  The public and private domains wax and wane according to steps laid down by the State, steps corresponding to its changing self-interest, or more precisely that of its representatives.  It was thus the political utility of the Stationer’s Copyright alternatively in the hands of Anglican, Catholic, Puritan, Roundhead and Royalist rulers that allowed it to survive until 1710.

6.05         Today, unlike in the times of St. Columba, the State consists of three distinct branches – the executive, legislative and judiciary.  Each can affect the rhythm and tempo of the dance.  Thus the U.S. Patent Office (part of the executive branch) chose not to recognize genomic and computer software patents but the courts (part of the judicial branch) chose to interpret existing law passed by the legislative branch as enabling because it did not explicitly prohibit such patents.

6.06         Overtime who leads and who follows in the dance also changes.  As demonstrated in my compilation The Compleat Canadian Copyright Act 1921 to 1997 (Chartrand 1997), one can literally trace the changing influence of creators, proprietors and users through amendments to the Act.  In 1931, for example, agricultural exhibitions and fairs, as users, were granted exemption from copyright infringement for the “performance without private profit of any musical work” (S.C. 1931, c.8, s.6).  Creators succeeded in 1988 in gaining significant extension of moral rights even though such rights remain subject to contract (S.C. 1988, c.15, s.4).  Similarly, in 1993 proprietors succeeded in having compulsory licensing provisions repealed (S.C. 1993, c.44, s. 61).   This shifting power balance highlights Paul David’s concern that the Anglosphere system of intellectual property rights “has not been created by any rational, consistent, social welfare-maximizing public agency” (David 1992).   

6.07         There continues, as well, the ideological conflation of creator and proprietor rights in the Anglosphere tradition, i.e., rights acquired as a reward for the creator are transferable to a proprietor by contract, in whole or in part.  This reflects, among other things: (i) confusion between intellectual property rights as trade regulation and as reward to the creator; (ii) the legal fiction that natural and legal persons share the same rights; and, (iii) the limited leverage of the typical creator relative to a proprietor, e.g., as a creator, if you want your work published you must sign a blanket or all rights licensing contract.  The result is that the power of the proprietor has been progressively strengthened by appropriation of creator rights that are then used in negotiations with the State, generally at the expense of users.  Proprietors have historically used, for example, the image of the starving artist to justify more rights and strict enforcement of existing rights with little or no financial gain to the typical creator.  Today it is being used again but this time, among other things, to legally inhibit downloading of music and film and other copyrighted materials off the internet; two hundred years ago, it fueled the ‘Battle of the Booksellers’ (Paterson 1968).

6.08         With respect to users, the abuse of market power by proprietors is evident in cases of patent and copyright misuse. The doctrine of misuse was first developed in U.S. patent law.  The courts permit a defense of ‘patent misuse’ against infringement if a patent holder, for example, uses a patent to prevent competition in products not protected by the patent (Morton Salt Co. v. Suppiger Co., 314 U.S. 488, 1942) or attempts to collect royalties beyond the term of the patent (Brulotte v. Thys Co., 379 U.S. 29,1964).  In the case of patents, misuse generally reflects the trade regulation facet of IPRs, i.e., their inappropriate use in restraint of trade and competition.  Similarly, the practice of major firms to patent anything that conceivably might be developed by competitors – present or future - has contributed to the growing ‘patent wars’.  In effect, small innovative firms face the constant threat that a large established competitor with deep pockets will use the cost of frivolous patent infringement suits to stop the competition before it can even begin.

6.09         During the 1990s, a series of U,S. court cases extended the doctrine to ‘copyright abuse’.  The first cases also involved anti-competitive behaviour in restraint of trade.  In Lasercomb v. Reynolds (911 F.2d 970 4thCir 1990) misuse was found when the copyright holder, in this case of computer software, used its license agreement to bar users from applying any ideas contained in Lasercomb software to write their own software. In other cases, the courts has found misuse when a license is granted only if the licensee agrees to use the copyright holder's hardware.

6.10         Copyright misuse, however, has more recently been extended by the U.S. courts.  Thus, in 2003, the U.S. Appeals Court affirmed an earlier district court decision in Video Pipeline v. Buena Vista Home Entertainment (342 F.3d 191, 3d Cir. 2003).  While finding in favour of the plaintiff, Buena Vista, the court extended the concept of misuse to cover suppression of criticism or free speech by a copyright holder.  In such cases a copyright may be used to suppress critical reviews of products.

6.11         Proprietors such as the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) have, with the innovation of the WWW, shifted enforcement attention from for-profit commercial ‘pirates’ to users or ‘privateer’.   Using the 1998 U.S. Digital Millennium Copyright Act, they have succeeded in shutting down file sharing systems like the original Napster as well as charging and convicting individual users including students of criminal infringement of copyright.  In my opinion, Phase III of Canadian Copyright Reform, anticipated after the next election, will adopt and extend the restrictive provisions of the American Digital Millennium Copyright Act.  Put in other words, I anticipate that Canadian students too will soon be going to jail for copyright infringement.

6.12         It is not only with respect to creators and users that IPR proprietors exercise ‘market power’.  They have also entwined with  the State in an incestuous political economic relationship like those condemned by Adam Smith.  Among other things, the legal complexity of the subject, IPRs, together with the inherent complexity and novelty of leading edge technologies like the WWW and DVD make politicians open to the persuasive powers of more knowledgeable proprietors.  This is captured by Litman concerning the American legislative copyright process and the absence of concern for the public domain and user:

The most compelling advantage of encouraging copyright industries to work out the details of the copyright law among themselves, before passing the finished product on to a compliant Congress for enactment, has been that it produced copyright laws that the relevant players could live with, because they wrote them… [M]oreover, [there are] few signs that the entities proposing statutory revision have taken the public’s interests very seriously. Instead, they seem determined to see their proposals enacted before they can be the subject of serious public debate (Litman 1996).

6.13         The incestuous relationship between the legislative process and proprietors recently surfaced in California where:

California's attorney general, Bill Lockyer, floated a letter calling peer-to-peer file-sharing software - long the bane of the entertainment industry's interests - “a dangerous product.” But a peek at the document's properties revealed that someone dubbed “stevensonv” had a hand in its creation.

Vans Stevenson, a senior vice president with the Motion Picture Association of America, said later that he had offered input on the document but had not written it.  (Zeller 2005)

6.14         Increasing concentration and integration of the media, the so-called Fourth Estate, is a recurring problem in the Anglosphere.  Such concentration is of concern because the press creates what Walter Lippman called a pseudo-environment consisting of “pictures in our heads” (Lippman 1927).  If all knowledge is orientation in an environment then the average citizen has ‘hands-on’ knowledge of only a tiny part of that environment.   Knowledge of the rest is obtained through the media which is part of the noösphere.   While Lippman was concerned with the propaganda role of manipulating such pictures to support the WWI war effort, in peacetime the same process is at play.  And the press is in a privileged position to adjust “The Age of the World Picture” (Heidegger 1938).  This creates a political economic dilemma, i.e., political power leading to economic profit and profit leading to political power.  Politicians need the media and favourable media coverage plus campaign donations to get elected.  Media conglomerates, unlike all other donors, offer all three.  In turn, the conglomerates need politicians to pass legislation increasing profitability, limiting competition and favouring their interests.  Hand meets glove.

6.15         While this state of affairs is troubling for politics and consumer/users of knowledge, it may have passed a critical threshold with ‘official’ recognition of the knowledge-based economy (OECD 1996).   Today only 12 to 15% of the labour force actually touches a physical good during the production process.  The rest constitute what Robert Reich (1992) calls ‘symbolic workers’ and Peter Drucker (1999) calls ‘knowledge workers’ creating, processing, distributing and conserving knowledge.

6.16         Such workers include those engaged in producing output on the shop floor, e.g., using numerical machine tools, as well as managers and entrepreneurs.  Unlike workers in the traditional manufacturing economy, however, they cannot expect lifelong employment and are increasingly contract and part-time employees moving from job to job – laissez passer.  To the degree that knowledge is their business, they are alienated from their own output by IPRs.  They cannot take their work product with them, nor in the case of copyright can they even claim paternity.  For example, senior executives of major corporations are subject to legal lobotomy when moving from one employer to another.  They are legally required not to reveal know-how and trade secrets of their old employer while their new employer is legally obliged not to ask.

6.17         Income distribution will, given current trends, likely grow into a major problem as the knowledge-based economy matures.  Given that the dice are arguably loaded in favour of proprietors the average knowledge worker is in a weak bargaining position.  Exceptional talent, i.e., the genius, will, of course, continue to enjoy special treatment.  The dilemma of shareholders and managements in treating talent is captured in Peter Drucker’ 1999 article: “Beyond the Information Revolution”.  Quite simply, a higher real wage is not enough to satisfy such workers.  Rather Drucker concludes that it is necessary to find some way of “satisfying their values, and by giving them social recognition and social power” (Drucker 1999, 57).  Arguably, this could be achieved by changing the balance of power in the private knowledge domain.

6.18         Assuming current trends continue, however, it can be expected that income distribution for the knowledge workers will increasing look like that of self-employed artists and entertainers who are second only to pensioners as an income class recognized by Revenue Canada (Chartrand 1992).  The income distribution of such knowledge workers is not a pyramid with a broad base, wide middle and a peak but rather an obelisk with a huge base of poor ‘starving artists’, a thin column of middle class survivors and a tiny elite earning enormous remuneration, e.g., Pavoratti.   This could be the future of the knowledge-based economy – no middle class.

6.19         One major structural change accompanying the knowledge-based economy also needs to be noted: the National Innovation System (NIS) (OECD 1997).  Nonprofit academic institutions partner with government and private for-profit actors to create networks of specialized research centres in priority knowledge domains, disciplines, sub-disciplines and specialties.  Such centres are intended to facilitate commercial exploitation of new knowledge and enhance the competitiveness of the nation.  In the process, three important structural changes are taking place.

6.20         First, the mandate of the university is changing.  The medieval university was focused on interpretation of old knowledge.  This mandate changed little following the Scientific Revolution of the 17th century.  With religious wars waging, the university – Protestant and Catholic – were busy defending religious doctrines and resisted the new experimental philosophy.  In effect, the university remained a training ground for elites in traditional and proper ways of knowing.  It was not until 1809 that the first research university was founded in Berlin transforming the mandate of the university - traditional and conservative heartland of Western knowledge - from interpretation of old to the generation of new knowledge. Today, the mandate of the university is arguably being enfolded within the NIS transforming it to generation and commercial exploitation of new knowledge (Nagy Nov. 3, 2005).  As predicted, this has produced a significant clash of cultures within the university itself (Chartrand 1989).

6.21         Second, as patron of the national knowledge-base, Government fosters and promotes production of knowledge through arm’s length institutions.  Such institutions generally direct funding according to peer evaluation.  In Canada, for example, during the last decade the federal government has endowed a number of quasi-public foundations to support knowledge production, e.g., “Canada Health Infoway Inc., received $500 million from the federal government; others have received multiple payments amounting to, for example, $300 million to Genome Canada and $250 million for the Green Municipal Funds” (Auditor-General of Canada 2002, 1.9).  In the past foundations, endowments or grant-giving councils were involved in the production of knowledge for knowledge sake.  Today, however, as part of the national innovation strategy these new foundations are concerned with ‘knowledge for profit’.  This means that commercial confidentiality veils many of their activities from public scrutiny.  This, in turn, raises serious questions about the accountability of private interests serving the public purpose, i.e., Government by Moonlight: The Hybrid Parts of the State (Birkinshaw, Harden and Lewis 1990).

6.22         Third, to date, the NIS has been restricted to the natural & engineering sciences.  There is, however, no reason why it cannot be extended to other knowledge domains and practices.  For example, national cultural policy corresponds to NIS in the Sciences.  The practices, with the notable exceptions of medicine and related engineering, have not, however, been the subject of NIS.  Accounting and legal praxis are applied to develop NIS. They have not themselves, however, been subjected to comparative advantage analysis, nor networked into NIS nor held accountable for their contributions – positive and negative – to competitiveness.   I suspect they will, formally or informally, shortly be enfolded within the NIS framework.  Arguably, heated political debate in the United States concerning tort and product liability represents the opening move towards seeing national legal systems from a competitiveness perspective.  Similarly, the accounting profession in the United States is, under the terms of the Sarbanes-Oxley Act of 2002, now subject to oversight unknown before the Enron scandal and the collapse of Arthur Anderson & Co.   This too may be but a first step in enfolding accountancy within the NIS web.

6.23         With the knowledge-based economy, the question of knowledge and democracy takes on an added and potentially troubling dimension.  How, given the increasing monetarization of information, can information democracy  survive, let alone prosper?


7.0 Conclusions

7.01         With the collapse of the Communist Revolution, its predecessor, the Republican Revolution, remains the only ideology standing in a global knowledge-based economy.  The foundation of this revolution was the individual Person, not the family or bloodline or class or body corporate.  This concept developed out of the unique experience of Western Europe beginning with the artist/engineer/humanist/scientist of the 15th century Renaissance who, while of ignoble birth, demonstrated the god-like power of creating ex nihilo, ‘out of nothing’ (Nahm 1947).  It was at this time that the first patents were awarded to such genius.  The Protestant Reformation of the 16th century saw the individual claim the right to direct communion with God without mediation by Pope, priest, philosopher, lord or lady.  The experimental philosopher of the 17th century further leveled the feudal hierarchy when the scientific instrument rather than social rank became the measure of all things physical.   In the 18th century the rise of the contemporary author together with insights flowing from the natural sciences ignited the “Querelle des Anciens et des Modernes”, i.e., the battle of the Ancients and the Moderns, marking the opening of the 18th century European Enlightenment (Kristeller 1952, 19).  And then, by the close of the century, the Republican Revolution overthrew the ancient regime of subordination by birth declaring “All men are created equal” and governance of the State by “We, the People”.

7.02         While the French Revolution linked the individual as creator of new knowledge to Civil Code rights that are “inalienable, unattachable, impresciptible and unrenounceable” (Article 11, Decision 351, Andean Community, 1993), the American Revolution adopted the Common Law tradition of subordinating the interests of the creator to the proprietor.  In this tradition there is ongoing confusion.  First, there is confusion between IPRs as a form of trade regulation intended to prevent monopoly and as a reward for individual creativity.  Second, this confusion is compounded by the fiction that a legal person can enjoy the same rights as the natural Person specifically with respect to IPRs.  Third, there is confusion between the purpose of IPRs as legal foundation for the industrial organization of the knowledge industries and as means to foster a public domain of knowledge available free and without restriction to all.  Fourth, in this confusion the intimate historical connexion between the individual Person as knowledge creator and as foundation of the political order has been obscured, arguably endangering our political freedoms.   Together with the organic evolution of Common Law through precedent, it can thus be justly concluded, along with Paul David, that the current IPR regime “has not been created by any rational, consistent, social welfare-maximizing public agency” (David 1992). 

7.03         In the emerging global knowledge-based economy, proprietors continue, with the advent of new communications and other technology, to argue that more and more property rights be granted to the creator (all, of course, transferable, by contract, to the proprietor) in order to enclose new knowledge within the private domain wherein they can earn profit by controlling access, or blessings like St. Columba’s Abbot.   To me, this is a political economic shell game in which such politically granted rights lead to economic profits and profits lead to the political power necessary to increase such rights.  To James Boyle (2003b), it represents “the second enclosure movement” in Anglosphere legal history.  The first drove peasants off the common lands of England in the 15th century; the second is driving knowledge workers and users out of the public domain.  The impoverishment that followed the first may well follow the second in the 21st century with similarly significant political and economic consequences.

7.04         That is how the law stands today.  Almost 300 years ago the Myth of the Creator was born with a Statute intended to break the perpetual copyright monopoly of the Stationers’ Company, to end pre-publication licensing and bring Scotland under a common law of copyright ending piracy in a new ‘Great Britain’.  The legal fiction was planted, however, that all rights originate with the creator but such ‘natural’ or moral rights are extinguished on publication.  Furthermore, creator rights were compromised in favour of the proprietor. Thus any and all rights can, and usually are, transferred to proprietors in return for a one-time payment, like medieval honoraria, with the stroke of the pen on an ‘all rights’ or ‘blanket’ license contract. The Myth survived the American Revolution and has now led, full circle, back to virtual perpetual copyright extending in the United States onto four generations and covering all existing and any as yet to be invented means of fixing the work of a creator in material form.  And an oligopolistic share of this immense knowledge-base is now controlled by five global media conglomerates.  Thomas Jefferson must be rolling over in his grave!

7.05         In a knowledge-based economy the current IPR regime amounts to subordination of the natural Person to bodies corporate.  It amounts to a counter-revolution overturning the American and French Revolutions and leading us back to a new feudal age.  It is time to finish the first flawed Republican Revolution.  It is time to connect the economic and political rights and freedoms of the natural Person.  It is time for a second Republican Revolution!  And the nice thing about ‘legal fictions’ is that the revolution requires but a single Supreme Court decision clearly distinguishing ‘the rights to know’ of the natural Person from those of any and all bodies corporate or collective.

A Dieu ?



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