Fisher, William “The Growth of Intellectual Property: A History of the Ownership of Ideas in the United States” 1999
(Vandenhoeck & Ruprecht, 1999) Eigentum im internationalen Vergleich 265-91

The one trend common to all doctrines of IP (copyright, patents, TM) is expansion. In relation to copyright, the obvious expansions have been in the term of protection and the things covered by the category of copyright works. Originally, copyright only protected form of the work, as in the copying verbatim of the literal text. “Eventually the courts, with Congress's encouragement, abandoned it in favor of the concept that the “work” protected by copyright consists “in the substance, and not in the form alone. That which constitutes the essence and value of a literary composition, which represents the results of the author's labor and learning, may be capable of expression in more than one form of language different from that of the original”.” (quoting from Peter Jaszi, “Toward a Theory of Copyright: The Metamorphoses of 'Authorship'”, Duke Law Journal 1991: 455, 478.)

What produced the dramatic expansion of IP rights? No single factor, but a host of them (focus on the US):

  • the gradual transformation of the basis of the American economy from agriculture to information processing
    • the transformation of the US from a net consumer of IP to a net producer

    “The shift in the “balance of trade” had a predictable effect on the stance taken by the United States in international affairs. In the early nineteenth century – as Charles Dickens learned to his dismay – the American government was deaf to the pleas of foreign authors that American publishers were reprinting their works without permission. In the late twentieth century, by contrast, the United States has become the world’s most vigorous and effective champion of strengthened intellectual-property rights.”

[side note: an argument sometimes advanced as to why Australia does not need as strong IP protection as the US (in contrast to what the US pushed in AUSFTA) is that Australia is a net consumer of IP and not a net producer, there strong IP protection may in fact be detrimental to our economy]

  • the durable and widespread popular commitment in the US to a labour-desert theory of property
  • the widespread popular suspicion in the US of governmental involvement in the process of identifying and rewarding good works of art and socially valuable invention
  • the strong commitment of both courts and legislators when administering the copyright laws to the principle of aesthetic relativism – i.e. the unwillingness to differentiate between good or bad art leads to extending “the umbrella of copyright protection to everything”
  • the popularisation and then persistence of the romantic conception of authorship “What is most striking – and to contemporary scholars, most distressing – about this ideological current is its continued strength. The image of the lone author working in her garret is almost wholly obsolete. Today, most writing (indeed, most creativity of all sorts) is collaborative. Equally importantly, the extent to which every creator depends upon and incorporates into her work the creations of her predecessors is becoming ever more obvious. Yet American lawmakers cling stubbornly to the romantic vision. There are few signs that it is losing its grip on the law.”
  • the gradual shift in the terminology used by lawyers to describe and discuss these rights – the “propertization” of the field (moving from talking about copyright as a monopoly to talking about it as a property right.) The popularity of the term “intellectual property” adds to this. “Why does the popularity of the term matter? The answer – as the Legal Realists recognised long ago – is that legal discourse has power”. A monopoly is a “dangerous device that should be deployed only when absolutely necessary to advance some clear public interest.” Property rights, on the other hand, are considered to be absolute.

<note warning>Only this summary is licensed under the CC Attribution-Noncommercial-Share Alike 3.0 Unported licence. Quotes taken from the original work are not licensed under the CC licence. Copyright in the original work is not affected by the inclusion of this summary here.</note>

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