I.II.A Technology and Disembeddedness

In reviewing the historical transformation of humanity from a feudal society to a market society, Polanyi contends that history records an economy that was, and should be, embedded in non-economic institutions and social relations.Footnote ¹³ Polanyi sets out a pre-industrial revolution English landscape whereby economic activities were regulated through determined state intervention, including craft guild regulations and feudal privileges, as opposed to self-regulating markets.Footnote ¹⁴ Adopting an Aristotelian approach to what constituted ‘good society’, Polanyi pointed to 2,000-year-old norms and traditions that ensured provision for everyone, where markets and monies were mere accessories to an otherwise self-sufficient household and where production was for use.Footnote ¹⁵ His account of such traditions, from tribal to mercantilist societies, including laws and regulations (which can now be appreciated as codifications of community responsibility and different motivations), maps economic activities that were not automatically framed by motives to maximize utility profit or other acquisitive motives.Footnote ¹⁶ Economic activities, such as manufacture, exchange, distribution and consumption of goods and services, were subordinated to non-market means of social integration. Such activities were by-products of social relationships framed by non-economic institutions and which reflected societal interests, collective conventions (including kinship) and shared norms.

The industrial revolution, on the other hand, wrought profound changes on the way human societies existed. Conceding that it did herald an era of technological progress which undoubtedly led to miraculous improvements in the tools of production, Polanyi also describes how, with the advent of technology, non-profit motivations and communitarian traditions were swept away by an ethos which demanded production for gain: people moved from fields, farms and workshops into factories with deplorable working conditions, greater working hours and looser regulatory oversight.

Although technology is not necessarily the sole cause of the bifurcation between society and the economy, it is clear that Polanyi views machines and technology as an essential feature of the causative chain which led to the great transformation of human society: from regulated to self-regulating markets; from the embedded society to a disembedded society; from a holistic human and natural world to one where capitalist theorists and entrepreneurs demanded an institutional separation of this embedded society into economic and political spheres.

I.II.B Labour and Investment as Fictitious Commodities

Polanyi viewed a commodity as something that has been produced for sale on a market. Nature, society and humanity were commodified and entered the market as land, money and labour – entirely fictitious commodities that could be bought and sold freely on the market.Footnote ¹⁷ This account explains not only why the new artificial commodities were to become the main mechanism for sourcing goods and services, especially through technology, but also why there is a change of motivations on the part of the members of society: the motive of subsistence, or State interest, was substituted to that of gain.Footnote ¹⁸

Polanyi was particularly scathing as to the commodification of humans and went so far as to equate the creation of a labour market to ‘an act of vivisection performed on the body of society’.Footnote ¹⁹ As Stiglitz accurately notes, part of Polanyi’s argument is based on morality: namely, it is simply wrong to treat nature and human beings as objects which are priced by the market. This violates societal norms on human dignity and sacred principles.Footnote ²⁰ Indeed, Polanyi’s warnings on the eventuality and consequences of global land commodification will appeal to the environmentalists and Greta Thunbergs among us today, though they must have presented a startling, if not mad, vision in 1941:

It is also within this angst-ridden discourse that we find an explanation as to why capital investments occupy a central role in economic development. The ‘invention of elaborate and therefore specific machinery and plant’ called for ‘long-term investment with corresponding risks’.Footnote ²² This, in turn, called for safeguards to all elements of supply, namely labour, land and money. Otherwise, investment into the production is simply ‘too risky to be undertaken both from the point of view of the merchant who stakes his money and of the community as a whole which comes to depend upon continuous production for incomes, employment and provisions’.Footnote ²³ Thus, in a self-regulated commercial society, such supply could only be ensured if such elements were commodified artificially and organized for sale on the market.

Law is viewed as a vital institutional tool in The Great Transformation. It transforms land and labour (including investment-backed labour) into tradeable, fictitious commodities, thus enabling disembeddedness. Detrimental laws included rules that abolished Elizabethan legislation on minimum wages (likened to ‘a right to live’), or rules that disassembled privileges and laws in England and France, which had previously restricted land enclosures but now allowed unregulated enclosures or that accelerated the commodification of land and labour.Footnote ²⁴ All such rules, Polanyi asserted, were due to the eagerness of entrepreneurs to purchase not just more land but also human labour, which was now unleashed into an unregulated marketplace to be dealt with as a commodity ‘which must find its price in the market’.Footnote ²⁵ And for the proper functioning of the market system, property rights are seminal as it is ‘the legal aspect … of capitalism’: ‘While the actual content of property rights might undergo redefinition at the hands of legislation, assurance of formal continuity is essential to the functioning of the market system.’Footnote ²⁶

I.II.C Counter-Movements

However, such a self-regulating market cannot exist infinitely as it will annihilate humankind and society. When land, labour and money are transformed into fictitious commodities, and when the market economy becomes too exploitative, society reacts with counter-movements which are a reaction against the ‘dislocation which attacked the fabric of society, and, which would have destroyed the very organization that the market called into being’.Footnote ²⁷

At this point, there is an institutional re-assertion of regulation, laws, policies and measures to check the actions of the market in relation to labour, land and money. These would also morph with the establishment of rules to protect the liberty and rights of human beings, and to guarantee the continued existence of man and nature.Footnote ²⁸ This shift from first disembedding to then (re)embedding is Polanyi’s ‘double movement’ concept. The notion of a continuous dialectical tension between moving towards commodifying everything within society, and the counter-movement away from markets towards social protection or social goals is also espoused by other economists and sociologists: Hayek, for instance, adopts this ‘double movement’ notion, albeit coming to an opposing conclusion, namely, that market liberalism expands humanity and life.Footnote ²⁹

As stated above, legal reform is a key agent in enabling and intervening in both types of movements: first to facilitate the creation of new fictitious commodities and the securing of investment; second to rein-in market forces and to adjust the more pernicious effects of a completely unregulated/self-regulated market economy.Footnote ³⁰ We return to the value of employing the counter-movement concept in relation to IP reform in Section I.IV.

I.II.D IP as a Motivations Landscape: Labour, Creativity and Investment

In Peukert’s examination of Polanyi’s theory as applied to IP, he argues that there is no correlation between property rights and technological progress.Footnote ³¹ This is true to a certain extent if we are seeking to situate the current IP legal system in the past, and if we use Polanyi to discover ‘property’. I do not. Instead, we are on a hunt as to whether early motivations for rules on certain types of res were transformed into the nineteenth-century framework of national and international IP laws. By using the Polanyian concept of an embedded society as it existed prior to the Industrial Revolution, we encounter specific rules which affected the production and exploitation of things, labours, industries and cultures. Employing the Polanyian measure of ‘motivation’ as to what constitutes an embedded society, we encounter similar mixed motivations for pre-modern quasi-IP rules, that is, individual, societal, communitarian, State and market motivations. And this exploration of mixed motivations within an embedded society does explain to a certain extent why IP is a contested concept without a uniform inherent meaning even before the commodification wave instilled by the reform of IP law in the nineteenth and twentieth centuries.

I.II.E Early Modern Era

The genesis of modern IP rules derives from a recognizable corpus of legal instruments within Western society in the last five centuries. This is not to say that these initiatives were the earliest exemplars of IP conventions and rules. Wengrow’s archaeological insights on fourth millennium BC Mesopotamia indicate the development of commodity marks, seals and labels in relation to terroir and standardization – thereby signalling the existence of value-added things and labour in relation to mass consumption products.Footnote ³² Roman publishers operated a quasi-unfair competition regime whereby their investments were protected from misappropriation.Footnote ³³ Shao’s seminal scholarship on Chinese legal history indicate early trademark regulations during the Han Dynasty (206 BC–AD 220), and a well-established authorial rights system by the Ming Dynasty (1368–1644).Footnote ³⁴ Long has argued that it is ‘clear that within medieval cities the attitude developed that craft processes constituted intangible property with commercial value subject to conditions of ownership’.Footnote ³⁵ Ford’s recent scholarship casts new light on the links between the Carolingian encouragement of Christian learnings, the legal immunities for monasteries and the eventual Venetian rules on inventions.Footnote ³⁶ And there are now attempts to uncover early Islamic understandings on property in intellectual labour.Footnote ³⁷

Although it has been argued that the Venetian regulations were cross-cultural hybrids aimed specifically to encourage and protect skills and technologies from the Eastern Mediterranean, Eurasia and the Islamic Empire, the Venetian (and other European) privileges and regulations in the early modern era do stand, nevertheless, as stark examples of pre-IP rules.Footnote ³⁸ Peukert deals with these early privileges quickly as they do not qualify in his quest for property or commodification.Footnote ³⁹ It is true that these early regulations had no uniform regional or state policy as to what would constitute the nature of the right or res protected.Footnote ⁴⁰ Nonetheless, IP jurists and scholars will detect familiar language in these instruments as they reflect the mixed motivations of authorities, creators and investors including compulsory licensing, incentivization, unjust enrichment and the protection of investment/labour/honour.

For example, the general Venetian State laws of 1453 and 1474 gave temporary monopolies to importers and inventors of innovations while personal privileges were granted for all sorts of artisanal and technological processes and products.Footnote ⁴¹ Scholarship, as pointed out above, claims that State privileges and guild practices in this period were tools for harnessing and regulating foreign technologies as well as censoring domestic printing. However, it is also accepted that such privileges and practices (in the forms of municipal favour [gratiae] or exceptions to law [priva lex]) worked to secure and protect the investment, and in some cases, acted as positive entitlements or licences to practice trades to foster domestic competition with the then dominant Venetian trade guilds.Footnote ⁴²

The Venetian 1474 Statute, for example, incorporated several policies reflecting individual and communitarian needs. The law enumerated defensive mechanisms to prevent misappropriation of the machine as well as the technical manuals and trade secrets attached thereof.Footnote ⁴³ It incorporated rhetorical language as to the protection of the inventor’s honour. And public interest is ensured with the linking of the regulation to the promotion of competition and the incentivization of more technology, as well as to the express provision allowing government use.Footnote ⁴⁴

The pattern of encountering mixed motivations which include protecting investment of capital, reward and recognition of labour, and public or societal benefits continue as we shift timelines and jurisdictions. Ginsburg’s study on sixteenth-century Vatican printing privileges, for instance, show that these were granted on the bases of investment (for the labour and expense invested in producing work), incentivization and reward (to the author or printer for ensuring the accuracy of the work), fair competition (as the privileges forbade unfair or unjust enrichment of another’s fruits), and public interest. She further suggests that these privileges show nascent concepts of derivative works, first publication rights and the French droit de divulgation.Footnote ⁴⁵ The 1479 Episcopal Privilege, granted by the Bishop of Würzburg to three printers for the printing of the Bishop’s breviary book, controlled several aspects of the tangible and the intangible res including (i) defensive mechanisms such as censorship, and sanctions for the theft of the printers’ goods and chattels involved in the manufacture of the books, and (ii) positive mechanisms such as the exclusive right to print, and to use the Bishop’s coat of arms as a proto-trademark designating the origin of the book.Footnote ⁴⁶ Both the papal and bishopric privileges espoused public interest rationales: the former was to ensure the dissemination of accurate religious tracts and to enhance the likelihood of the creation of future beneficial works with some petitions pursuing future rights for translation; the latter was to enable a market structure which protected the printing investment by preventing competition (e.g., the emergence of derivative and new versions of the book).

Identical motivations, namely investment, labour and public interest arose within early English laws and jurisprudence. In the 1602 Case of Monopolies, the court’s biblical basis was not merely against anti-competitive monopolies but also on the traditional principle of ensuring protected labour for the welfare of the commonwealth.Footnote ⁴⁷ The 1624 English Statute of Monopolies juxtaposes patents against the competing public interests of state welfare and regulated competition.Footnote ⁴⁸ The element of public interest was further seen in later English patents which incorporated compulsory working and revocation clauses.Footnote ⁴⁹ Many motivations were further rooted to emerging Renaissance and common law doctrines on humanism, equity and culture instancing these examples: the moral interests of inventors, the economic concerns of investors and the wider societal benefits (such as consumer protection against counterfeiting and deceit) were treated as having complementary values; notions of dignity and conscience were assumed to be inherent in some types of labour by English equity courts which eschewed utilitarian bases to adopt deontologically biased notions of ‘good conscience’.Footnote ⁵⁰ These show, perhaps, the validity of Polanyi’s theoretical idea of an embedded society. The example that encapsulates Polanyi’s idea that laws, as institutional regulators, were vital in upholding an embedded society with its pluralist concerns was Brunelleschi’s application for a privilege on a newly improved cargo boat. The application for a monopoly was claimed on the grounds of intellect, industry, invention, fear of theft of the ‘fruit of his genius and skill’, a desire to ‘disclose’ his knowledge and a need to incentivize further ‘higher pursuits’.Footnote ⁵¹

So, when do we see the transformation of privileges into Polanyian fictitious commodities? Is it true, as Polanyi asserts, that property is the institutional tool whereby labour is transformed into commodities? In Peukert’s view, what eventually led to the commodification of activities and artefacts into IP is the technological advances from the mid-eighteenth century which made it clear that ‘publishers, authors and inventors require property right that enables them to recoup their sunk investments in the first prototype’. His eighteenth-century examples are the transformations which occurred in the German book trade (switching from a barter in books model to a sale of their productions model), and the French revolutionary decrees of 1791/1793.Footnote ⁵² Peukert further notes that ‘the evaluation of works and inventions became more and more detached from arguments of traditional aesthetics and public benefits. In the end, the only relevant value remaining was the market-conception of value: every use value, however motivated or characterized, has to translate into an exchange value.’Footnote ⁵³ Peukert declares that the ‘history of IP from the nineteenth to the 21st century is replete with examples of this Polanyian logic of commodification’.Footnote ⁵⁴ I agree and based on Peukert’s analysis, I extrapolate his observations to map out several global consequences which, in turn, frame our current IP norms in the next section.

Nevertheless, I would also argue that one cannot easily ignore the earlier system of privileges and rules which granted not only manufacturing, printing, publication and quasi-trademark rights but also rights of importation into the territory which show to some extent Polanyian concepts of why an embedded society reflected pluralist motivations. First, at least in Europe, this ad hoc system reflected the main concerns of the ruling elites, that is, to attempt a balance between censorship, regulation of technologies, barriers to market entry and an ethos of ‘good values’ or ordre public. Creators appeared as beneficiaries in early rules, but it was not until the early eighteenth century when they were regarded (at least rhetorically) as primary stakeholders, rather than secondary or even minor stakeholders in the world of technologies and arts. Second, there were no boundaries as to the themes for which petitions were granted though from the eighteenth century onwards, IP concepts, rules and rationales appeared. But such concepts were cross-hybridized versions which grew from a corpus of medieval European legal institutions that protected both creator and investor, mental labour and private investment, in widely marketable objects.

I.II.F Res Becomes Fictious Commodities

First, Peukert is indeed right to locate the eighteenth century as being the approximate start of discourses on works and inventions as ‘labour’. Hegel, for instance, refers to ‘mental aptitudes, erudition, artistic skill […], inventions’ as mental activities which constituted ‘mental property’ the moment they became expressed and alienated and subsequently ‘put into the category of ‘things’. Hegel is fully cognizant of the role of property and the law in relation to mental labour: it is ‘the primary means of advancing the sciences and arts’ so as to guarantee scientists and artists against theft, and to enable them to benefit in a similar way that property is used to advance trade and industry against robbery. Ever sensible of balance, Hegel can also be read as arguably justifying the rights of users to appropriate others’ mental property to create derivative works.Footnote ⁵⁵ Bently and Sherman also note, in relation to British IP law, the importance of the notion of ‘mental labour’ as the basis of property rights in the eighteenth century especially as there was no law of copyright, patents, designs or trademarks. Used to distinguish such labour from manual labour, the term ‘mental labour’ formed a common link between different forms of mental or intellectual activities and know-how and may have been wide enough to encompass personality.Footnote ⁵⁶

Second, there is an abundance of literature on the subsequent transformations in national law and policy from the nineteenth century onwards whereby ‘mental labour’ which is embedded within physical objects (for example, recipe books or manufactured objects) is extended to cover ancillary outputs in the form of confidential information, trade indicia, and know-how (to name a few). These were slowly wrenched away from their physical manifestations, as if that is all there was, and aggregated with the incorporeal part of the ‘thing’. The latter existed thus as discrete value-laden commodities which were, in time, recognized by courts and legislators as intangible res. Peukert points to the dis-embeddedness of signs, for example, from medieval guild practices to stand-alone accessories attached to commodities traded on the competitive market. I would add that the expansion of trademark protection to three-dimensional shapes has been complemented by expansive justificatory rhetoric while simultaneously dealing with the possible anti-competitive effects of IP protection of shapes.Footnote ⁵⁷ Indeed, the function of trademark law in the EU has clearly extended beyond origin to communication, investment and advertising.Footnote ⁵⁸

Unsurprisingly, the first international patent and copyright conventions absorbed the then dominant national positions on the nature and ambit of intangible property, ambiguous as they were.Footnote ⁵⁹ One notes the origins of the French wine appellation system which grew around concerns as to genericide of place names (a cultural value), consumer protection as to fraud and product origin (a traditional trademark function), and rent seeking (a very modern trademark rationale for the protection of investment).Footnote ⁶⁰ These concerns were subsequently embedded in later eras so that the protected or regulated res would not only include tangible artefacts and human labour but natural phenomena (including scientific, medical principles and discoveries), and geographical culture (as in terroir in regulating beer and wine in Germany and France).Footnote ⁶¹

Thus, in the true Polanyian spirit, the commodification process within the nascent international IP regime extended not just to labour but products of the land with which labour was arguably mixed.Footnote ⁶² This was a logical extension of the ‘let’s commodify all’ spirit. This may clarify the extent of the term ‘industrial property’ as used in the earlier texts of the Paris Convention. The term successfully captured industrial and agricultural extractive outputs including wines, grain, fruit, cattle and mineral waters; by 1925, the provision extended to include tobacco leaf, and by 1934, to such staples as beer and flour.Footnote ⁶³ All these outputs would be successfully re-purposed under different IP sub-constructs, that is. patents, industrial designs, trademarks, appellations of origin, etc.Footnote ⁶⁴ Since the 1970s, the type of intangible res which has been categorized as IP has accelerated: patent protection has extended to computer programs, medicines, biotechnological inventions, life forms and business methods.Footnote ⁶⁵ A similar phenomenon occurred under the Berne Convention 1883,Footnote ⁶⁶ while national and regional laws continued to press for expanded subject matter: from photographs, to films to press publications, and to controlling dissemination of works on all sorts of media and platforms.Footnote ⁶⁷

Perhaps the most notable example of Polanyi’s concerns as to the vagaries of market-led regulation is how the principle of unfair competition was harnessed to secure fictitious commodities trading in the open market. The principle of unfair competition is principled on the notion that in accordance with ‘fair practices’, a competitive market will comprise actors which conform to certain types of acceptable market behaviour. And yet Art.10bis of the Paris Convention on Industrial Property can be read as converting workable competition rules (i.e., fair practices) into a positive entitlement for IP proprietors.Footnote ⁶⁸ Thus, the historical and current legislative narratives as to why we need sui generis database rights, plant variety rights, geographical indications, sound recording rights and pharmaceutical test data exclusivity manifest as confused and extensive discussions on whether ‘entitlements’ were justified at all within copyright or patent or trademark or unfair competition laws.Footnote ⁶⁹

I.II.G Rationales, Typology and Lexicon: More Fictitious Narratives

The third point is that, as all sorts of labour and objects became qualified as tradeable commodities, Procrustean solutions were adopted in order to accommodate the expanding res either by accretion (which involves re-purposing an existing category to encompass new commodities) or emulation (whereby new res is brought within the law by creating new rights which emulate existing rights and rationales).Footnote ⁷⁰ Not only was mental labour and its ancillary outputs commodified into tradeable assets and captured by existing legal constructs (such as copyright, patents and trademarks), but the typology and legal lexicon of IP law burgeoned, with ever growing and contradictory rationales.Footnote ⁷¹

The dynamism of rationales and discourses in the past two hundred years – when the res to be regulated and protected expands beyond traditional justifications of reward, compensation, incentivization, dignity or honour – is not new. Burrell and Kelly show that justifications in nineteenth-century patent law had to include ‘public access’ as this would allow patent law to underwrite the investment costs incurred in harnessing foreign technologies:

The perplexing purposes of patent law have also been criticized by Adcock and Beyleveld. They question the need for ‘inventiveness’ as a criterion of protection if the purpose of patent law is to protect investment. And in their view, the purpose has slowly been transformed from reward and natural right to unjust enrichment to incentivization of investment:

The accretion/emulation approach was adopted so that copyright law could expand to accommodate soulless productions, devoid of human author or persona. The emulation method produced sui generis IP regimes which mix a dizzying array of concepts borrowed from copyright, patent or trademark laws. National design laws reflect an ambivalence in rationales when one examines the different national and international criteria: eye appeal, pattern, shape, configuration, form, model, ornamental, functional, original, commonplace, individual character, and novelty.Footnote ⁷⁴ If financially dictated labour could not be labelled as creative authored works, international law was adjusted to include sound recordings and broadcasts and integrated circuit layouts, and to set out new rights.Footnote ⁷⁵ We know that jurists and legislators theorized deeply on new rationales, rules and categories (‘neighbouring rights’, ‘related rights’, or even sui generis rights) to stretch protection to computer programs,Footnote ⁷⁶ sound recordings,Footnote ⁷⁷ photographs/filmsFootnote ⁷⁸, computer-generated works and now AI-derived inventions, music and art.Footnote ⁷⁹

As in the early modern era, the rules for new commodities embraced a variety of motivations which underpinned such works or underpinned rationales for property rights – banal, subsistence, educational, creative, competitive, trade indicia, investment or state welfare. The different thresholds may also suggest that the rationales for subaltern IP rights were ill-thought out and emanated not so much from protecting the labourer or their creativity but the sunk investment by manufacturers of ‘industrial’ commodities.

I.III.A Returning to Basics

Cornish, in his first textbook edition, defined IP law as the ‘branch of the law which protects some of the finer manifestations of human achievement’; he cynically added in a later edition that ‘it also shields much that is trivial and ephemeral’.Footnote ⁸⁰ Bently and Sherman suggest that intellectual property law ‘regulates the creation, use and exploitation of mental or creative labour’.Footnote ⁸¹ Vaver argues that the phrase ‘intellectual property’ starts ‘from the premise that ideas are free as the air – a common resource for all to use as they can and wish. It then proceeds systematically to undermine that principle.’Footnote ⁸² Spence’s view is that an IP right is ‘a right: (i) that can be treated as property; (ii) to control particular uses; (iii) of a specified type of intangible asset’.Footnote ⁸³ Dutfield and Suthersanen push the boundaries slightly further to propose that IP is ‘a type of property regime whereby creators and entrepreneurs are granted a right, the nature of which is entirely dependent on the nature of the creation on the one hand, and the legal classification of the creation on the other’.Footnote ⁸⁴

If we turn to stipulative definitions as laid down in international laws, we encounter divergent representations of IP as a legal collective noun for the classifications of artefacts and activities. In its most turgid and tautologous form, the WTO–TRIPs Agreement uses the term ‘intellectual property’ to refer ‘to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II‘,Footnote ⁸⁵ namely copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout-designs of integrated circuits and the protection of undisclosed information. And evidently nothing more.

The WIPO Convention, on the other hand, theoretically embraces every conceivable labour output of man and industry with an open list of IP as including the rights relating to ’literary, artistic and scientific works, performances relating to artists, phonograms and broadcasts, inventions in all fields of human endeavour, scientific discoveries, industrial designs, trademarks, service marks, commercial names and designations, protection against unfair competition, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields’.Footnote ⁸⁶ On the other hand, the Universal Declaration of Human Rights states that everyone has a right to interests resulting from ‘any scientific, literary or artistic production of which he is the author’. Besides reflecting a gender bias, the provision also reflects the literature which situates IP law within a rights-based discourse.Footnote ⁸⁷

Turning next to theoreticians, we encounter Harris’s view of IP law as constituting trespassory rules which restricts uses of the ideational entity thereby preserving ‘to an individual or group of individuals an open-ended set of use-privileges and powers of control and transmission characteristic of ownership interests over tangible items’.Footnote ⁸⁸ Drahos explains IP within his own socio-political justificatory context: ‘We shall say that intellectual property rights are rule-governed privileges that regulate the ownership and exploitation of abstract objects in many fields of human activity.’Footnote ⁸⁹ Thus far, we encounter current notions of IP law as being concerned with human achievement or activity, intangible (or abstract) objects (or assets), mental or creative labour, creators and perhaps entrepreneurs. So, does the law grant rights in intangible objects or does it accord privileges to control certain uses or activities ad rem? Both Drahos and Spence veer towards the latter perspective. The former dramatically inflates IP rights as ‘liberty-intruding privileges of a special kind’ which ‘promote factionalism and dangerous levels of private power’.Footnote ⁹⁰ The latter argues that the right does not vest in the intangible asset per se, but rather focuses on the ownership of the asset as a gateway to control of usage – the object of an IP right is the legal right itself.Footnote ⁹¹ Pila’s lexical account of IP skirts close to this view of IP as a ‘type of property conferring temporary exclusionary rights in respect of the objects it exists to protect’. However, she also concedes that one cannot understand the function of the law as a right without a detailed exploration of the nature and individuation of the subject matter protected: ‘however widely or narrowly the scope of IP protection is cast, its primary reference point remains the individual subject matter to which the property rights attach, conceived as a subject matter of relevant (protectable) type’.Footnote ⁹² George’s theoretical approach adopts a similar approach in exploring the definition of IP, but to no avail, as she concludes IP is symbolically important but an essentially contested concept without an inherent meaning; instead her suggested approach is to reconstitute a metaphysical notion of IP based on society’s internalization process.Footnote ⁹³

Okediji notes the success of the commodification of mental labour and investment in relation to the rebranding of ‘IP goods’ on the global trading market as investment assets. She also notes, affirming the Polanyian cautionary narratives, that when IP is cast as an investment, the focus shifts from ‘a conditional grant to incentivize creativity and innovation to a guaranteed right justified by reference to the amount of capital committed, the expenses incurred, the profits anticipated, and the risk assumed’.Footnote ⁹⁴ Such consequentialist platforms are also part of the current narratives for EU IP laws: the need for copyright to ‘protect and stimulate the development and marketing of new products and services’; the desirability for trademark law to promote ‘the development of economic activities’; and the need for the patent system to ‘encourage research into and production of biotechnological medicines’.Footnote ⁹⁵ Okediji further argues that to prevent this consequential shift in IP function, state intervention is essential as it incorporates other state obligations, for example: ‘the protection of fundamental freedoms, national security, environmental or public health needs could be compromised’.Footnote ⁹⁶

I.III.B (Intellectual) Property as a Pluralist Concept

Dagan’s wider treatise on property urges that we adopt a more pluralist notion of property which not only allows ‘the coexistence of a diverse set of social institutions’, but also allows for differing emphases depending on whether the property type arises from a more utilitarian basis (then the emphasis is on investment and economic success) or from a more social basis (then the emphasis may be on active participants and social cohesion). Indeed, he forbids any liberal thinker to adopt a ‘one size fits all’ understanding of property as ‘[s]uch a straitjacket is not only misleading but also unfortunate because property’s structural pluralism enables diverse forms of the good to flourish’.Footnote ⁹⁷

And there is an increasing tide of scholarship advocating such a pluralistic concept in relation to IP law. For example, Merges argues for an IP model which comprises ‘a commitment to individual ownership as a primary right, respect for third-party interests that conflict with this right, and, from the philosophy of John Rawls, an acceptance of redistributive policies intended to remedy the structural hardships caused by individual property rights’.Footnote ⁹⁸

An earlier work by Resnik expresses a similar approach by exposing six bases of IP rights: Locke’s libertarian property theory, utilitarianism (relying on Mill and the US Constitution), Hegel’s theories on self-expression and freedom, privacy, egalitarianism including Marxist notions of distributive justice, and finally Rawls’s ‘reasonable’ pluralistic conception of justice.Footnote ⁹⁹ A pluralistic approach provides ‘the best account of IP’, he declares, as it acknowledges the disparate types of IP with inherently different values. More importantly, Resnik points to Rawl’s supra-factor as to why a pluralistic account of IP is vital: modern democratic societies are pluralistic, reflecting different ethnic and cultural backgrounds which encompass different moral, philosophical and religious beliefs.Footnote ¹⁰⁰ This accords with David Hume’s view that there is nothing natural about property rights as they are merely historically accepted societal practices that arises and derives its significance out of the scarcity of the object in question.Footnote ¹⁰¹ This chapter joins the body of scholarship that advocates that pluralism is structurally inherent and necessary for any IP right to be understood.Footnote ¹⁰²

The smorgasbord of definitions clearly evidences the implausibility of uncovering a single, uniform rationale or meaning of IP. And what the law has done – if the motivation landscape is to be believed – is to assiduously follow the varied stakeholder interests. IP law is a beast wearing a palimpsest of the many narratives and rules that have been re-written and re-purposed throughout the centuries to its current state. We should not be too flustered about the continuous expansion of protected subject matter, or the continuous lack of coherent rationales as to why something is or should be considered ‘IP’. What the tangled circularity of explanations does is emphasize that the law is a dynamic construct reflecting the socio-economic interests and values of specific periods and peoples.

My suggestion is that we need to accept that IP – as a property right or as an entitlement – is a socio-legal fiction. In which case, the false dichotomy between ‘property as a thing’ and ‘property as a bundle of normative relationships concerning the use of the thing’ should be dismissed especially as justifications for IP are nebulous. Instead, I assume that property rights can attach to any tangible and intangible object conceptually as the law creates any res or thing, whether corporeal or not, through the notion of property rights. An IP right – as a property right – should be considered to be an individual property object or ‘thing’ or ‘res’ to which a person’s use-rights are attached.Footnote ¹⁰³

With this understanding of what constitutes IP, we can continue to argue whether the law protects human creativity, capital, cultural geography or heritage. But should we?

I.IV.A Humanist, Communitarian and Stakeholder Aspects

The argument, that IP is a natural and exclusive property right subsisting in human-based intellectual creations, was an obvious one historically to displace other competing notions of privilege, monopoly, investment and the prevailing patronage systems. Aligned with this ethos is the romantic rhetoric of authors and inventors pursuing an egotistical agenda by advocating individual rights in valuable intangibles arising from the natural and just result of the creator’s persona or her individual labour.Footnote ¹⁰⁸ And indeed, not every eighteenth-century jurist or reformer blindly strove to transform mental labours, investment-led activities or intellectual knowledge or skills into commodities detached from the object’s motivation, the creator or the community. Eighteenth-century jurists such as Lord Mansfield or Le Chapelier advocated a rather pluralistic perspective of property rights for creative mental labour justified either on the principle of rewarding or incentivizing labour or on the more humanist principle of a person’s right to property, personality and dignity – but definitely a property right to be countered by public interests!Footnote ¹⁰⁹

An ancillary dimension is most, if not all, justifications holds that IP rights should be curtailed – by duration, by third party rights of use, by competition and by public or global interest. Examples of such doctrines within IP laws include: copyright law’s fair use or fair dealing, patent law’s compulsory licensing or research use, trademark law’s exclusion of generic marks. These exceptions or limitations are often posthumous recognition of societal rights overlooked by industry. The same balance is found in arts. 7 and 8 of the TRIPS Agreement which, on the one hand, espouses a utilitarian view of IPRs (Intellectual Property Rights) and states that IPRs are private rights. The agreement also structures the understanding of IP law, on the other hand, in terms of social goals. This is in tandem with the movement we see of equating IP as a human right, though not without controversy.Footnote ¹¹⁰

Thus, recognizing IPRs as investment-driven property does not entirely deprive IP law of its welfare and social contours; it still should be acknowledged whether we adopt a utilitarian or more human rights perspective. Okediji, Geiger, et al. are right from a Polanyian perspective in insisting for greater state intervention to make counter-movements if we avoid the creativity–investment bifurcation.Footnote ¹¹¹

I.IV.B Technology, Environment and Health as Public Goods

Technology has systematically made inroads into our societal and economic relations which in turn has led to law reform within IP law. It is argued that our interaction with peoples, governments and companies from interactive experiences to grocery orders to medical appointments works through the vast profusion of networks enabled by machine-learning algorithms: ‘Our education and healthcare is increasingly delivered through AI-enabled technologies. Our manufactured products, be they household conveniences or houses, will soon be produced by 3D printers.’Footnote ¹¹²

And all this can be further harnessed by the fact that previous local and regional trade networks have evolved into our current ‘just in time’ global supply chains.Footnote ¹¹³ On the other hand, farmers worry as to their rights to knowledge, seeds and repair,Footnote ¹¹⁴ consumers worry about their right to ‘own’ digital music and e-books,Footnote ¹¹⁵ scholars and citizens are concerned as to the increasing costs of accessing academic publishing especially in science and technology,Footnote ¹¹⁶ religious and environmental groups view patented plants and green technologies as abhorrent to morality and social welfare,Footnote ¹¹⁷ societies are concerned as to world trade rules which countenance the commoditization of drugs and vaccines;Footnote ¹¹⁸ and we wonder as to infiltration of AI-enabled technologies in all aspects of human living.Footnote ¹¹⁹

Okediji’s fear revolves around the idea that we are in danger of reducing the IP res to one simple category, namely the capital risked or invested. In such a scenario, we would have lost all other functions of IP as housed in current justifications. This view accords with those which argue that our current crises (in public health or educational or technology) have been brought about by our governments who have delegated responsibility for the ‘public interest’ to corporations in the specific area of producing goods and services; and in return corporations have the right to make profit by any means whatsoever.Footnote ¹²⁰ The latter argument is certainly prevalent in writings of those who interrogate whether pharmaceutical companies, as non-state actors, should be held accountable in tandem with governments, for fulfilling public health obligations.Footnote ¹²¹

Once again, all these concerns represent the nascence of counter-movements within health, trade, environmental and technological fora which will hopefully form the bases for legal reform, thereby re-embedding IP res within a holistic societal control.

I.IV.C Lines for Analyses for Reform?

Polanyi’s suggestions are that things should be re-embedded within society. His caution is simple: irrespective of what is being protected, the property aspect of IP law should be restrained for society and humanity. We all know of the various writings and policies which try to ensure a balanced IP law.Footnote ¹²²

I leave it to others to suggest what specific reforms are needed to counter the relentless push and commodification of IP res, acknowledging that ‘investment’, ‘labour’ and ‘creative’ will remain uneasy companions within the IP narrative. Nevertheless, I offer this list to gently prod the reader to either declaim my choices (some of which have been espoused by others) or to add their wish list:

• An international agreement to curtail the durations of protection and/or to introduce registration to copyright systems.

• An international public interest rule within all Preambles or Objectives to state ‘An equitable or fair mandatory remuneration is ensured for all human creators.’

• An international public interest rule mandating access to IP res for users exercising their own fundamental rights (to education, science and culture, health, self-development, freedom of expression, etc.) OR: Re-classification of limitations and exceptions within IP laws as constitutional rights or as fundamental rights of others vis-à-vis the rights to health, etc.

• Introducing the notion of ‘essential’ or ‘staple’ IP res (akin to essential goods doctrine within competition law) with a legal presumption of reasonable pricing or compulsory licensing.

• A UNESCO–WIPO Register of declared public domain (as with orphan works in EU).

• Exploratory studies on the viability of environmentally derived ‘rights’ in relation to repair, farmers, exhaustion doctrine and reverse engineering for innovations which impact agriculture and food security.