Invention and Originality in the Law of Obscenity
In this paper, I argue that at the heart of the U.S. Supreme Court's obscenity law lies an outmoded romantic myth: the notion of the visual artist as an original genius. Since 1973, obscenity law has made a special exception for works that are sexually explicit if they demonstrate what the Court termed "serious artistic value". Yet this standard was drafted at a radical turning point in the history of art, and the new art that has arisen since then has rendered the assumptions underlying "serious artistic value"' obsolete. I show how lower courts' interpretations of "serious artistic value" have all been premised on distinctly modernist conceptions of artistic invention and originality. Yet many contemporary visual artists make work that directly challenges these notions and that celebrates its own derivative status. Obscenity law evaluates contemporary art by the very standard which that art seeks to defy.
After showing that obscenity law and its assumptions about originality and invention do not offer adequate protection to contemporary art, I then confront a further question: what is the relationship between this legal threat and the creative process for artists whose work might be vulnerable? The traditional view is that such unclear First Amendment lines create a "chilling effect," thereby suppressing valuable speech. I question whether this story is only partially correct. Does legal uncertainty also create a perverse incentive for some artists to create art, particularly in the context of a contemporary art world that has rejected modernist notions of greatness?
The Wondrous Childhood of the Wright Brothers: Twentieth-Century Fictions of Inventive Boyhood
By the turn of the twentieth century, inventors became notable folk heroes worthy of admiration by most Americans. With the inventors' stock raised, children's periodicals, series fiction, and building manuals were awash with discussions of the "inventive boy," an imaginative (and often imaginary) cultural figure which celebrated the inventor as a cultural hero and encouraged observers to reimagine current and future boys' activities as industrial training. This discourse shaped, and was in turn, shaped by stories about the boyhoods of Orville and Wilbur Wright. Focusing on what would become the most famous episode in these boys' lives, namely the gift of a flying toy in 1878 from their father, this paper considers the various legal, social, and cultural contexts from which these stories emerged. The inventive boyhoods of Orville and Wilbur appeared in various venues, ranging from popular early twentieth century biographies and depositions in patent disputes, popular magazines and model airplane manuals. Retold for various reasons, this story was framed as an example of the nature of children's imaginative behavior, giving the Wrights' boyhood new life in the early twentieth century. As authors--including the Wrights' themselves--participated in elaborating this tale, the Wrights' status as inventors was greatly enhanced, as was the potential power of children's material culture. Arguing that these inventing narratives were rooted in wider assumptions about gender and technology, this paper analyzes threads of memory, biography, and legend by tracing how these narratives transformed the inventive boy into parables for a modern technological world.
The Imaginary Politics of Access to Knowledge
This paper explores the humanitarian promise contained in advocacy for broader access rights to knowledge, and the notion that access is a precondition to the public good of invention. This politics is explored from three perspectives: the Commons as a product of a history of
The Rise of Intellectual Property Rights in Seed Germplasm
This paper lays out how there has been a sea change in the legal treatment of plant genetic resources ("germplasm") over the past thirty years from treatment as "common heritage" of humanity to sovereign national property.. Prior to the 1970s, germplasm was considered to be part of the "common heritage" of humankind that is freely accessible in a decentralized way by countless generations of farmers around the world. Beginning in the 1930s, with the US Plant Patent Act, certain types of human intervention in plant biology began to be deemed as intellectual property. First, asexually reproduced plants, such as grafted fruit trees, then sexually reproduced species, with the European UPOV and the US Plant Variety Protection Act of 1970, were also protected under the umbrellas of Plant Breeders' Rights. In 1980, the US Supreme Court held that living organisms that had been genetically altered via individual human agency were subject to utility patents, the strongest form of federal intellectual property protection and in 2001, the Court held that plant varieties that were novel were likewise patentable. Thus by the beginning of the 21 st century, common heritage treatment for plant germplasm was under siege.
The "Seed Wars" of the past three decades refers to the resistance by developing countries initially to the common heritage treatment of their plant genetic resources - if they were common heritage, then bio-prospectors from the wealthy nations of the North could freely access those resources and take them without compensation. The 1992 Convention for Biological Diversity initiated a model under which bio-resources were to be treated as sovereign national property, rather than as common heritage and the 2001 International Treaty for Plant Genetic Resources further built on this model, declaring that over 60 crops were to be treated as common heritage, but that other crops were appropriable as sovereign national property under the CBD model.
This paper considers how both the common heritage and the sovereign national property model elide and conceal the collective, intergenerational, decentralized (and mostly anonymous) creative human agency that agricultural crops embody and works to confer intellectual property rights on the individuated model of US copyright or patent authorship and invention. Furthermore, this paper considers some of the consequences of reliance on the intellectual property model for global agriculture and food supply.
Happenstantial Authorship: The Element of Surprise in Faith-Based Human Cloning
This paper considers the creative co-authorship of a new religious movement that in large part appears to be making itself up as it goes along. This movement, the Raelian Religion, is founded on the notion that extraterrestrial "Designers" - the Hebrew Bible's Elohim - created life on Earth. Observing from afar the evolutionary progress of their work, the Designers take special interest in human beings, whom they created "in their own image" through advanced human cloning technology and regard as their "supreme" artworks-in-progress.
Contemporary Raelian scientists actively pay homage to the poetics and science of this originary creation event in their reverence for therapeutic and reproductive cloning. Indeed their science activism extends to having claimed the accomplishment of cloning the first human baby with their patented RMX2020 nuclear transfer machine (as seen in Playboy Magazine ). Meanwhile, in a more modest key, other Raelians seek to live the Elohim's Messages in their everyday commitment to social lives of emergent, "open" consciousness and sexuality, anti-war activism, and expressive culture. The reward for this effort is nothing less than eternal life: the DNA of the "awakened" is archived for cloning on a better planet when and if we destroy life on Terra.
In short, the contingency-based narratives of the Raelian network's "galaxies of discourse" reveals how its physicalist imaginary shapes subjectivities that are simultaneously fluid, and themselves inventions of a fluid modernity in which the value of conceptual coherence is traded off for a social creativity at odds with conventional social practice. On another level, there are striking implications for post-identity politics of this contingent self-authoring program. As theorized by Morson in Narrative and Freedom , Raelians' lived "irony of origins," complemented by an "irony of outcomes," promises that the Truth of the Designers will give way to profound surprises of self-action; likewise, that new alignments of authorship and authority will expose the limits of ideological constructs of "community." Understood anthropologically, the E.T.-effect of science as religion bears witness to this double capacity of the human to create and to destroy relationality itself.
Positive Copyright and Creative Commons Licenses: How to Make a Marriage Work
The Fuel of Interest and the Fire of Genius
The paper surveys the evolution of concepts of technology, inventorship and patents in America since colonial times through the end of the nineteenth century. During this period these concepts underwent a radical transformation. Early prevailing views and practices were embedded in a set of assumptions and categories fundamentally different than the modern ones. Technology, as such, was often imputed relatively little significance as a key component of communal or national strength. Even within discussions of technological development, invention, in the modern sense, occupied a trivial place. Moreover, there existed no clear and unequivocal concept of the inventor as an individual genius defined by his ability to create new and original ideas. The inventor was more commonly seen either as an entrepreneur characterized by his economic activity or as a craftsman defined by his technical skill. Similarly, the focus of thought and practice in this context was not on the creation, preservation and dissemination of information, but rather on practicing publicly beneficial economic activities. During the late eighteenth century and the early nineteenth century all of these various aspects had changed. Technology came to be seen as a central component of social welfare and national prowess. Inventorship gradually moved to the center of the concept of technological innovation. The image of the inventor was reconstructed as an individual hero, defined by his intellectual ability to create completely new ideas and the focus of related social and legal practices became the creation and dissemination of information.
The paper elaborates this set of transformations as they unfolded in complex ways within the sphere of patent law and discourse.
Thomas Edison and the Forms of Invention
This paper will explore two competing models of invention as they appeared in the popular and professional scientific cultures of late nineteenth century Britain.
It was only in the latter half of the nineteenth century that science emerged as a distinct professional category with its own institutional bases and conventions. Broadly speaking, science shifted from being the preserve of privately funded amateurs, towards what we would now recognize as professional scientists: men (and sometimes women) in white coats in institutional laboratories. With greater emphasis placed on standardized procedures, institutional regulation and the examination and accreditation of individual practitioners, the realm of science became more internally coherent but less externally accessible to the non-expert public. At the same time, however, popular newspapers and periodicals regularly reported on the new wave of technologies that followed from late century enquiries into electricity, wireless telegraphy, x-rays and other such invisible forces. Whilst the professional practices of institutional science remained opaque, their results were often made visible to the public in the most striking and sensational ways. In this paper I will examine the ways in which representations of inventors and scientists in the late nineteenth century popular press codified the process of invention for a non-professional audience. Whereas the presiding model of scientific invention within the institutional realm was more frequently based on analytical process, bureaucratic procedure and a gradualist approach to the production of knowledge, there was a countervailing tendency in the popular press to figure invention in terms of sublimity, awe and momentary flashes of inspired genius.
Through a close analysis of representations of Thomas Edison and other high profile inventors in the literature and popular press of late nineteenth century Britain, this paper will demonstrate some of the ways in which authorship, invention and scientific genius were re-imagined for a newly bureaucratized and institutionalized world.
Intangibles, Appropriation, and Intellectual Property Law:
Throughout the latter part of the twentieth-century and particularly following 1990's Native American Graves Protection and Repatriation Act (NAGPRA) and Indian Arts and Crafts Act (IACA), a host of legal and interdisciplinary scholars have called for greater protection of Native American creative production, and, in particular, intangible forms of production. Intangible creative production is not covered under either of the 1990 Acts. Legal protection of the oral traditions and stories (also referred to as "oral forms") of Native Americans is at the heart of many of these discussions. While the question of how to address copyright's insufficiencies in respect to Native American creative production is at the center of this ongoing legal debate, a more important question is whether Native American oral forms should be protected by copyright. Although cases such as Apple v. Franklin (1983), Goldstein v. California (1973), and Stern Electronics v. Kaufman (1982) have opened the door for courts to consider including intangibles within IP law, copyright is not the answer to the problem of protecting Native American oral traditions from appropriation. As stated in the Bellagio Declaration (1993): "[e]ach intellectual property right, in effect, fences off some portion of the public domain, making it unavailable to future creators." The Declaration assumes that knowledge, creativity, and invention are not completely isolated, individual practices but are part of the collective of human knowledge and experience. This approach to knowledge and creativity parallels that seen in Native American oral traditions, which are currently free from the restraints of ownership and intellectual property with which the signatories to the Bellagio Declaration are concerned.
In this paper, I argue that expanding the scope of copyright to envelop Native American oral traditions is antithetical to the creation and function of these forms within their host communities and would do more harm than good. The specific rationale for not including Native American oral forms in copyright includes the following points: 1) the underlying justification for awarding IP rights to these oral forms; 2) the function of oral forms within Native American communities; 3) the mechanisms available to and currently being utilized by Native American tribes in order to control their oral traditions; 4) the potential problems that could arise from assigning legal ownership to oral traditions.
Codes of Value:
In this paper I present the central motifs of value that hackers hold, through a close examination of their practices of authorship (coding), joking, and general norms of socialization--their signifying practices, through which they enact cultural value. Hackers favor a virtuous display of technical ability and intelligence whose inscription is marked in a repertoire of micorpractices, including playful humor, agonistic taunting, and especially the clever display of code. Hackers are bound together in an elite fraternal order of judgment, of constant self-cultivation, and of the performance of a set of character traits that are often directed to confirm their mental and creative independence from each other. This display of selfhood leads to a series of tensions between individualism and collectivism, populism and elitism, hierarchy and equality that texture their social world. But hackers bridge and attenuate them, I argue, through the expression of wit and the invention of code, especially clever code and humor. The constant execution of cleverness affirms an image of the free-thinking individual who leans the logic of systems so well that only he can innovate and create something truly original. However, hackers rarely see invention or authorship as the creation of pure novelty. Instead, hackers express ingenuity by routing around all sorts of formal constraints-- from hardware specifications to inherited code--and they do this to create what they designate as clever, innovative, or elegant solutions. Given their commitment to technical self-cultivation, which requires access to technical material, there is a felt need to constantly and recursively equalize the conditions by which other hackers can develop their skill and prove their worth to peers. Once does not privatize the source of value one creates. In the realm of free and open source software, the output of creative labor is fed back, circulated among peers, contributing to an endowment of shared resources through which other hackers can engage in their asymptotic process of self-cultivation. As part of this cultivation, they have made a Millian-inspired language of freedom and free speech their own.
Your Second Life? The Performativity of Intellectual Property in Online Games
This paper examines the performativity of intellectual property in digital games, with a focus on Massive Multi-Player On Line Games (MMOG). Our analysis centers on the performative production of "goodwill", an 'intangible asset' of considerable value to corporations that is based upon an affective bond between consumers, corporations and their commodities in the marketplace. We argue that most critical analyses of intellectual property fail to consider the centrality of goodwill to corporate management of their intellectual properties, especially in digital environments. In order to analyze the performativity of goodwill, we lay out a theoretical framework based upon the concepts of cultures of circulation, network sociality, circuits of interactivity and the multiple dimensions of the computer/user interface. This framework, we contend, enables us to understand the shifting relations of power and reciprocity between corporations and consumers, particularly in digital gaming contexts where the division between player-consumption and player-production increasingly become blurred. The increasing technological ability for consumers too become producers of gaming content, alters the terrain upon which conflicts between corporations and consumers about intellectual property are fought. We empirically examine the performance of intellectual property in Linden Labs' Second Life, one of the fastest growing MMOGs, and how it is constituted that is governed by a very "liberal' intellectual property policy that affirms player's rights in their digital creations.
An Economic Model of Sampling, Cover Versions, and Musical Collage
Copyright law has recently altered its restrictions on musicians who wish to engage in sampling, the use of other creators' sound recordings to construct new musical works. These restrictions include recent judicial decisions like Bridgeport Music v. Dimension Films (6th Circuit, 2005), which found copyright infringement in the unauthorized use of a two-second sample used in the background of a song. More generally, expansions in copyright law, such as the 1976 Copyright Act's expansion of the exclusive right "to prepare derivative works," have made direct creative borrowing more expensive and occasionally impossible. In this paper I explore several legal and economic issues implicated by this policy problem, including copyright law's discrimination between certain categories of creation, labor-economic choices presented to musicians who consider sampling, and various approaches to reform. Systematic data on sampling activity and sample-licensing fees are not currently available, making statistical analysis infeasible. Given that limitation, this paper outlines an economic model to highlight the fact that the creations of others are a key input into new creations. The model thus illustrates certain key tradeoffs, arguing that changes in copyright can affect musicians' allocations of labor between recording, touring, and any outside options. Furthermore, legal changes will affect musicians' decisions about whether to create recordings and whether to release those recordings commercially. I illustrate these tradeoffs using a simulation. I then use the model to frame a brief survey of proposals for reform to the sample-clearance system. Finally, I discuss approaches to future data-collection that would facilitate testing of the theoretical model.
Creation Myths: Mapping Originality in Space and Time
In patent and copyright laws, different jurisdictions set the requisite degree of creativity at various levels from very high to a de minimis level which is so low that "originality" is barely perceptible. Tracing back an intellectually-based production to its primary source can be a fascinating task but as we show in this paper, one has a tendency to use pre-determined large scale maps that omit most of the B routes and which lead to questionable destinations. Treating originality as a creative - and traceable - moment in time, space and thought is bound to enmesh us in inconsistency and confusion. Nonetheless, most intellectual property laws decree that this is not only a possible and reasonably unproblematic endeavour, but also a compulsory requirement. The law boldly draws a line in the sand between original works that merit protection and other works that are either not "original" or insufficiently original to pass muster. Jarndycian legal disputes arise from this assumption, but nonetheless, at the end of the day, somebody is held responsible for originating the invention or creative work.
Specifically, to obtain patent or copyright protection, an intellectual production is supposed to be demonstrably original in at least two senses. First, it must be different or distinguishable from the existing corpus of intellectual products, and therefore worthy of protection. This is the basis for novelty (in patent law) or distinctiveness (in trade mark), individual character (in European design law) and, in many cases, originality (in copyright). We call this the "existing corpus" problem.
Second, it must be "sourceable", which is to say that the production must "originate" from someone or somewhere. The "sourceability" makes it possible to identify the creator(s) in which the right should initially be vested, and also to identify the necessary criterion of "individuality" or "creativity" and even "inventiveness" that is required within copyright and patent laws. It is also the key criterion in laws concerning trade marks, traditional knowledge and geographical indications. Without "sourceability", there could be no author, inventor, designer or trade mark holder. We call this the "sourceability" problem.
We find difficulty in acknowledging the existence of originality in both meanings of the word. One can grudgingly accept the first meaning of the word, though much of what is deemed "original" under intellectual property law is hardly original at all. From a utilitarian perspective, the extent to which an intellectual production merits protection does not necessarily grow in relation to how "original" it is from either the "existing corpus" or the "sourceability" perspectives. Tiepolo's The Family of Darius before Alexander , Mozart's Haydn Quartets , and Glaxo's Zantac are all rightly celebrated productions, yet are not spectacularly original. Arguably, lack of originality does not necessarily lead us to conclude that the intellectual production lacks merit or is unworthy of protection.
But herein lies a knotty problem: if this is the case, should we abandon the originality or novelty tests? Even if this means, for example, that "inventors" that have merely tested a traditional medicine and described it in chemical terms can get a patent too? Even if this means that derivative works which merely change the form of presentation of a pre-existing work can get copyright protection too? If we hand out intellectual property rights in such a non-discriminatory fashion, will we shrink the public domain and discourage future creativity? More worryingly, will the foundations for our ever growing intellectual property become more precarious and eventually crumble? We need to have a filtering system. The question then is whether "originality" offers the ideal system.
Originality as a source is problematic , especially in terms of patents. This is not just because history has shown quite conclusively that the tracing of so many past inventions to famous heroic inventors turned out often to be misleading or even false. The point is that by recognising certain individuals as authors or inventors we privilege a few people at the expense of a silent majority of individual "giants" upon whose shoulders the author or inventor was and is still standing. Is this fair and good policy? In this paper we aim to address this criticism and answer the question just posed by reference to two case problems: the case of the invention of polymerase chain reaction, and the derivative Monty Python "Last Supper" sketch based, it is submitted, on the infamous Inquisition trial of Veronese's Last Supper.
This paper does not suggest easy answers. The law pretends that we have an objective measure of originality that can be ascertained and then adopted to filter out the worthy originals from the unworthy unoriginals. We argue that we should be honest enough to admit that this is never going to be easy nor accurate.
Creative Commons: A Skeptical View of a Worthy Pursuit
The paper examines the legal strategy of Creative Commons and analyzes its potential for enhancing the sharing, distribution and reuse of creative works. The paper focuses on Creative Commons's strategic choice to rely on property rights and on viral contracts to promote free culture. While I share Creative Commons's concern with copyright fundamentalism, I am more skeptical of its strategy. The legal strategy which empowers owners to govern their creative works facilitates a far-reaching coalition among libertarians and anarchists, anti-market activists and free-market advocates. While such an ideological diversity might serve the political goals of a social movement, it may compromise the long term goal of making creative works more accessible. The lack of a core perception of freedom in information , may lead to ideological fuzziness that would weaken the prospects for constructing a workable and sustainable alternative to copyright. Furthermore, absent a commitment to a comprehensive standard of freedom in information , Creative Commons's defining principles are reduced to empowering authors to govern their own work . The paper predicts that this strategy may strengthen the proprietary regime in information.
Ghostwriting, Pro Se Litigants, and the Legal Culture of Plagiarism
This paper explores the idea of authorship of legal documents. It uses the controversy over ghostwriting by lawyers on behalf of pro se litigants to examine the larger subject. Ghostwriting or collaboration is ubiquitous in the law and typically raises little concern. Lawyers rely on forms to generate many documents, and junior lawyers draft documents for senior lawyers. Moreover, many court documents are ghostwritten by lawyers or law clerks. The paper examines these phenomena in an effort to explain why ghostwriting for pro se litigants seems to have been treated more skeptically. In so doing, the paper raises questions about the meaning of authorship of legal documents more generally.
What Is a Judicial Author?
This paper examines the ways in which judges write opinions, the ways experienced and inexperienced legal readers conceptualize judges as authors, and the affect these conceptions have on the way they read those opinions. The paper describes judicial writing as a quintessential example of collaborative writing, a view corroborated by the ways experienced lawyers use and interpret judicial opinions in practice. The judicial opinion is not, as lay opinion grounded in the Romantic view that forms contemporary common wisdom would have it, the original work of the wise and creative judge pronouncing from on high. Rather, the opinion itself is a piece cobbled together from a number of other sources that include established law, the lawyers' written and spoken legal arguments, secondary legal sources, and earlier opinions that were themselves built up from the bits and pieces floating through the legal discourse community. Nevertheless, conventional legal thinking has since at least the 19 th Century through today propounded the notion of the judge as quintessentially Romantic author-creator. This clash between legal practice and the conventions of legal (and especially academic) discourse poses real and neglected problems in legal education, especially in the ways the Romantic view of judicial authorship instills in students habits of reading
The Commodification and Exchange of Knowledge: Transnational Yoga
The practice of yoga outside of India and for commercial exchange (transnational yoga) is a multi-billion dollar industry that has been the site of increasing formal and informal regulation. The primary questions that these regulations are meant to resolve include: (1) What is yoga and its practice?, (2) What is its proprietary nature, and (3) Who has the right to manage the expression of yoga and teach a practice? In order to answer these questions interested groups are making diverse claims about the nature of yoga including; The claim by Bikram Choudhury and others that aspects of yoga, such as a series of postures or a breathwork method, can be the invention of a singular author and subject to intellectual property protections, The claim by traditionalists that yoga is a generic entity that exists in the public domain, The argument put forth by Open Source Yoga Unit (OSYU) to manage yoga according to Open Source philosophies, and The Indian government's attempt to define, catalogue, and preserve the nation's cultural heritage and proprietary interest in traditional yogic knowledge through the creation of a digital library. Two recent US federal district court cases involving the Bikram Yoga College of India (BYCI) have prompted these different interest groups publicly articulate these positions. Additionally, these two cases have focused local and international attention upon the debate of whether yoga is a proprietary form of knowledge or whether it is a practice that exists in the public domain.
This paper explores how the traditional practice of yoga becomes a globally franchised business and how local, national, and international legal systems influence these flows. Furthermore, this paper analyzes how the globalization and commercialization of tradition prompts new understandings of not only yoga, but also property and ownership rights, to emerge. To do this the author will draw upon ethnographic materials of different international yoga schools based in India and the United States and their claims, or lack thereof, to intellectual property protections.
OSYU is a non-profit organization formed to contest Bikram Choudhury's copyright claims to a specific yoga series. Members of OSYU include lawyers from the Creative Commons community and Hot Yoga studio owners from the around the world
Screen Credit for Everyone
One of the most important yet understudied aspects of work and creativity is how credit for creativity is attributed within organizations. The reputations we develop for the work we do is proof to the world about the nature of our human capital; indeed, it is a form of human capital itself. Credit creates credibility. False attributions of credit diminish the value of the information about who did the work. From the standpoint of creators or producers, credit rewards and disciplines creators; it is instrumentally valuable as a way of establishing a reputation, but it is also intrinsically valuable to people who simply want to see their work acknowledged. From the standpoint of consumers, author names serve a trademark function; a novel sells better if it has John Grisham's name attached, and a scientific study produced by an acknowledged and impartial leader in the field is more likely to be considered reliable than one conducted by unknown technicians working for a corporation. Beyond authorship or invention in the arenas of copyright, patent, and trademark, crediting individuals for their contribution to work serves a variety of important social functions.
For nearly a century, American intellectual property law assumed that the allocation of intellectual property rights and the reward and discipline functions of attributing authorship or invention were and should be the same. Today, intellectual property rights no longer serve either the credit or the discipline function because legal doctrine has divorced intellectual property ownership from creators. Intellectual property scholars in the United States and Europe debate the proper use of patent, copyright, or trademark law in attributing credit for creativity, but the debate over desirable scope of IP rights in protecting the creator's right of attribution is only one aspect of a much larger problem in crediting creativity.
This paper is a descriptive and normative study of the operation of systems of attribution in a wide variety of fields of endeavor. The paper examines similarities and differences in the formal and informal processes by which organizations and industries allocate credit and responsibility for creativity, and through thick description explores the reasons why attribution matters. Credit systems operate as a sort of institutional memory, as a form of virtual community, and as a credential for people working in high velocity labor markets. From the most formal credit system to the least, norms play at least as large a role as legal rules in mediating among different possible claimants (or "blamants," depending on whether the purpose of attributing authorship is to praise success or blame failure). This paper theorizes why legal regulation of attribution is necessary in some situations, while acknowledging the primary importance of norms governing attribution and the practical and conceptual difficulty of attributing responsibility among groups, and identifies five characteristics of a just and efficient regime for attributing creativity in collaborative work settings.
The Ingenuity of Film Genre
The approach to the author as producer eclipses the contributions to meaning made by the audience. But what also gets short shrift is genre, that is, other texts-other texts as sources of meaning. The author has historically stood in the way of realizing the possibilities of one of the most important philosophical insights of the last thirty years, which is, that we are constituted through language. Or, as Stephen Heath once put it, "the author is constituted at the expense of language ." An even more provocative assertion might be Michel Chion's: "The author of the film is the film itself!" Here I will then take a slightly heretical approach to the question of originality, but an approach that is not without a historical basis, given that the U.S. motion picture industry has perfected a remarkable repeatable "language" or grammar-and exported this "classical fiction form," as it has been called, worldwide. Important will be the acknowledgment that the industry approach to moving picture production evolved into an exquisite balance between product differentiation and strict form/style. It developed efficient or economical story-telling.
Here I will return to the struggle over the authorship of the story staged in the U.S. at the moment before the question was resolved in favor of the rights-holding studio corporation. This involves revisiting the 1906 - 1910 period when the demand for stories to supply nickelodeon theatres peaked dramatically. To satisfy the voracious need for "picture ideas," the new companies recruited everyone on the set and bought stories from amateurs. These amateurs were encouraged to "view as many films as possible." In other words, they were told to make stories out of pre-existing stories. And, they were encouraged to follow the form.
Figuring significantly here is the Ben Hur Supreme Court case which, in 1911, defined copyright in the motion picture in the context of a struggle between the publisher of the novel, the theatrical agent, and the studio that produced the 1907 short. But my approach to the history of this case is from the point of view of the Kalem Studio. There, scenario writer-actress-director Gene Gauntier described her use of the pre-existing narrative as having made a story out of another story, something she had learned to do since she used Tom Sawyer as the starting point for her first script. In the spirit of Tom Schatz's The Genius of the System, I want to argue for the ingenuity of the genre system, genre here encompassing the story structure that delivered expectations, genre shaped by the economical narrative style that delivered the pleasure of return to the known form. With this tack, I am entering into debates in two different fields: within film theory, the relatively new debates over the evolution and export of the language of "classical Hollywood narrative style," and within critical legal studies, the question of exclusive rights in the popular, repeatable form.
Reinventing the Wheel: Classification on and of Digital Networks
Recently coined, the term "folksonomy" refers to an open and emerging taxonomy of knowledge, or what Wikipedia explains as "a group of people cooperating spontaneously to organize information into categories" (September 2005). Even before there was a term, though, network users subdivided and organized their knowledge of the network they knew. They invented classifications, thereby shaping the net. And their inventions importantly gained currency as they started to seem natural - that is, not invented - to more and more users. This paper examines to early instances of on-line classification, one from the moment when the ARPANET (the earliest element of the Internet) was just being built, and the other from the moment when the World Wide Web was just about to emerge as the Internet's dominant user interface. In my first example, members of the Network Working Group relied upon a numbered series of memos - the Requests for Comment (RFCs) - to discuss the requirements of the ARPANET and openly to establish its protocols. In my second example, computing centers on university campuses developed a client/server architecture - Gopher - to organize Internet resources. Looking at efforts to categorize RFCs and to nest Gopher menus offers a glimpse of intuitive categories becoming strange and of inventions becoming naturalized, revealing the knowledge work of network development.
Frames from the Framers
The men who framed the U.S. Constitution inherited several ways of thinking about cultural creations. The dominant metaphor in England for many years had compared creative work to the harvest of a landed estate. ("His Brain, which was his Estate, had as regular and different Produce as other Men's Land," wrote Joseph Addison of an author friend.) The estate metaphor was bounded by two others, however: commonwealth and monopoly. For some, the fruits of creativity should be "common stock," as free and general as air or water, and therefore the estate in question should not be a private holding but more like the old agricultural commons. For others, private estates were fine, but no one should monopolize their fruits. Copyright and patent were understood to be monopolies, and unchecked monopolies were understood as social evils. When it came to framing the U.S. Constitution, men like Madison, Jefferson, and Adams resolved the tension between commonwealth and monopoly though a civic republican model that allowed for private ownership so long as intellectual property was not held in perpetuity but given, after a short time, to the public. The Constitutional proposition, therefore, is that intellectual property should ultimately be a republican estate, an intangible equivalent of tangible res publicae (roads, bridge, harbors), or of the Republic itself.
The Flash of Genius: Defining Invention in the Era of Corporate Research
During the 1940s a heated debate took place in the federal courts and among patent attorneys regarding Justice William O. Douglas's decision in a patent infringement case that a "new device, however useful, must reveal the flash of creative genius, not merely the skill of the calling." While a few commentators argued that this decision did nothing more than affirm a longstanding principle that an inventor show more than ordinary skill or ingenuity, most commentators and lower court judges interpreted this ruling to require that a patentable invention required its inventor to literally experience a moment of inspiration. In their effort to define invention the courts argued over whether invention was the province of the individual or whether organized industrial research could also be invention and thus protected by existing patent law. The legal controversy was only resolved when Congress stepped in and modified the patent law in 1952 to make the nature of the inventive act immaterial to the question of patentability. This paper argues that this legal debate over the over the nature of invention reflects a larger cultural anxiety about the role of the individual inventor growing out of the rapid rise of corporate research organizations. At the same time, it seeks to explore the ways in which the patent system itself helps to define invention for the larger culture.
Eighteenth-Century Fan Fiction and Copyright Law: The Historical Emergence of Fictional Characters and Cultural Discourse on Authorship and Originality
The paper examines the cultural discourse around fan fiction in the eighteenth century in order to shed light on eighteenth-century interpretations of "originality," "imitation," and "authorship," and the extent to which copyright law shaped (and was shaped by) cultural perceptions about the ownership of fictional characters and the emerging genre of the novel. By focusing on fictional characters, rather than fictional works, the paper explores how "copying" began to be transformed from a mere literal printing copy-right to a more expansive protection for non-literal re-workings that were themselves creative. The paper argues that this period's authors and readers actively engaged in creating contending constructs of "fictional characters" as private property, on the one hand, and as public commons, on the other hand, and influenced the scope of "originality" in copyright law and the development of the novel. These themes are developed in this paper through the specific historical illustration of two early novel fictional characters--the eponymous characters from Samuel Richardson's Pamela and Daniel Defoe's Robinson Crusoe --who were famous enough to provoke both adoration and censure among readers and to spark a sustained conversation about authorship, originality and evolving norms for copyright. This paper provides illustrations of how these eighteenth-century authors (and their readers) responded to other people's "adoption" of fictional characters, when such practices were criticized and when they were accepted and even celebrated, and how these debates between authors and readers help to identify the norms that were then incorporated into descriptive legal categories . It situates the fan fiction for these two authors in the context of the period's copyright debates and looks both at how fan fiction influenced the meaning of "original expression" for copyright law and how copyright law influenced how fictional characters were culturally constructed as a legal property that could be owned, appropriated and reclaimed.
Rac-ing Patents/Patenting Race:
This paper will explore the increasing use of racial and ethnic categories in the context of gene-related patents and drug development. Spurred, in part, by directives from federal agencies to collect racial and ethnic data in clinical trials and drug development, medical researchers and drug companies are increasingly considering the relationship between race, ethnicity and genetics, particularly in the emerging field of pharmacogenomics. In this context, we see a new phenomenon emerging - the use of race and ethnicity as genetic categories to obtain patent protection and drug approval. This phenomenon is likely to increase as federally sponsored initiatives such as the Human Genome Project and the International Haplotype Map Project produce new genetic information organized around population subgroups that may be loosely correlated with certain racial and ethnic categories.
Patent law is supposed to promote the invention of new and useful products. This paper will argue that race and ethnicity are being exploited by the use of patent law in new ways that do not spur the invention of a new product, but rather the reinvention of existing products as racial or ethnic. In so doing patent law both racializes the space of intellectual property transforming it into a terrain for the re-naturalization of race as some sort of "objective" biological category and commodifies race and ethnicity as goods to be patented and subjected to the dictates of market forces.
Invention and Agency in Patent Law
Controversies surrounding the "humanness" of patents related to human genetic material and information have raised a conundrum. If an invention is, by orthodox legal definition, a thing, how has it become associated with a sense of humanness, which is, for example, attributed to gene patents? Or put differently, if the notion of wholeness is commonly associated with the human person, how can a patented invention, which has originated from scientific practices, become a free-standing entity and no longer form 'part' of something else? The way in which a human 'part' relates to the 'whole', with the latter being commonly understood as a human person, seems increasingly problematic in light of the dispersed location of a unitary 'whole' that the existence of 'parts' needs to assume.
This paper is an attempt to theorise the transformation of an artefact into an invention by way of a detailed analysis of the temporal and spatial assumptions in patent law. Rather than offering the well-known patentability criteria as explanations, it seeks to capture the legal mechanisms of detachment and re-materialisation of an aspiring artefact/invention in a slow motion because they may shed some light on the question about the agential capacity of an invention. The analysis draws on Alfred Gell's anthropological work on time and employs Anish Kapoor's sculptures as visual analogies in order to explore the temporal and spatial dimensions within the legal conception of an invention.
Curiously, patent law stipulates the existence of an invention prior to the identification of the inventor. In patent law's operations, the relevant points of reference are artefacts rather than human subjects. Patent law is not particularly concerned with the disciplining of human agents, but of things. And what the legal creation of an invention seems to effect is the individuation and distinction of artefacts within the limited temporal-spatial sphere of proprietary rights. Rather than denoting a material substance, a patented invention consists of its legally mandated potentiality to be integrated and recombined with other social practices. Therefore, the main substance of an invention, at least so from a legal point of view, appears to be the in-between space of its associative potential with other artefacts and persons. This kind of abstract and self-referential quasi-agency of a patented invention does not derive from its eventual human origin or from the history of its technoscientific emergence, but is solely negotiated by the legal aesthetic form of invention.
The UNIX operating system environment has achieved a ubiquity with no parallel in the software world. It began as a computer science experiment in the early 1970s, spread to universities around the world in the late 70s, became the darling of the computer industry in the 1980s, and (in its incarnation as GNU/Linux) helped launch the explosive growth of the Internet in the 1990s. More than simply being a story of the spread of a technology, UNIX has enabled the creation,
Images of Innovation: Art and Visual Culture in Patent Drawings
From the beginnings of the U.S. Patent Office in 1790, applicants often included drawings or models of their inventions. They were acting in the spirit of Diderot's Encyclopedia, which had been published almost forty years earlier (the 1st volume was dated 1751) and which is rich in illustrations. Our presentation will include a chronological analysis of drawings that have accompanied the texts of patents over more than 200 years. We have found that these drawings reveal an evolutionary portrait of what patentees were trying to achieve in terms of economic competition but they also reflect the evolution of artistic style, particularly in the light of inventions, such as photography, that changed the way inventors, along with everyone else, 'saw' the world. Patent drawings also reflect changes in the iconography of art history. At first glance they are simple demonstrations of mathematical and verbal ideas that have traditionally been associated with clarity, economy, and utility. By examining them we can see shifts in form that echo styles such as naturalism and symbolism. Science and art historians have independently noted parallel transformations over the course of time in the imagery of art and science, leading in some ways towards non-representational art in the 20 th century. We have found these tendencies in patent drawings as well. Patent drawings involve issues of representational styles, artistic conventions, media, the relationship of image and text, and interpretation. We propose to analyze selected patent images on a range of subjects, including mechanical automatons, robots, and prostheses and compare these images with images from 18th century influential texts. We will embody our interpretation with slides of Levy's artistic work in which she transforms patent images into genealogies of invention.
Breeding, Ownership, and Agriculture:
Patent protection has been granted to animals in the United States, Europe, and other countries only in the last twenty years, but at least since the late eighteenth century, a nimal breeders managed to devise alternative arrangements to protect the intellectual property (IP) in their living products. Fulfilling the requirements for such protection - for example, being able to specify the product -- depended on biological knowledge of the animal. The arrangements also had to take the natural reproductivity of the animals into account. The long history of IP in animals is thus a story of the interplay between the development of biological knowledge and methods of breeding on the one side and of the arrangements at any given time that this body of knowledge and skills permitted. Ultimately, the patentability of animals was enabled by the exquisite specificity and reproducibility provided by the identification of DNA as the hereditary material and the ability to manipulate it with recombinant techniques.
Inspiration and Innovation
© 2006 Roberta Rosenthal Kwall
Copyright's provision of economic incentives is completely consistent with its underlying utilitarian philosophy. A perspective grounded in economic and conventionally understood utilitarian rationales for legal protection emphasizes the commodification and dissemination of intellectual works. This perspective fails to take into account that human enterprise also embodies inspirational or spiritual motivations for creativity. This failure creates turmoil for many authors because it fosters a dominant market exchange reality that ignores the importance of non-economically based motivations for innovation.
This Article demonstrates that narratives illuminating spiritual or inspirational motivations for innovation are integral to understanding more fully the artistic soul, and challenges the dialogue on authors' rights in this country to consider the implications of such narratives. The intrinsic dimension of creativity developed herein is one characterized by spiritual or inspirational motivations that are inherent in the creative task itself as opposed to motivation resulting from the possibility of economic reward.
Inspirational motivations for artistic creation can be understood better through an examination of a variety of narratives illuminating the intrinsic dimension of innovation. This Article examines both theologically based and secular narratives about creativity drawn from a variety of sources. The analysis demonstrates how deeply inspirational motivations are embedded in Western civilization's perceptions about creativity and illustrates how the insights derived from these narratives featuring inspirational motivations for creativity can inform the discourse about the law of authors' rights.
Subsequently, the discussion demonstrates that the American legal system historically has ignored the insights derived from these narratives as fundamental sources of human sensibilities regarding artistic creation, resulting in a legal system manifesting an incomplete view of artistic creativity. It probes how the United States' law governing authors' rights has been shaped in response to a largely different perspective, one that focuses on economic as opposed to inspirational motivations. The analysis also demonstrates that the insights derived from this perspective can facilitate the development of appropriately tailored moral rights laws that would promote the policies underlying authors' rights in this country. Finally, the discussion tackles how the United States' law should be changed so that it can be more responsive to all authorship interests rather than just those that are economically motivated. It proposes a viable framework for stronger moral rights protection consistent with our existing legal system.
Networks of Innovation: The Emergence and Diffusion of DNA Microarray Technology
Since the work of Hughes, Saxenian, von Hippel and others, economists and historians of technology have abandoned the linear model of innovation which pictured a direct flow of innovation leading from scientific discovery, to product development, and ending with market introduction of new products. The linear model has been replaced with a model of "open innovation" that stresses the role of linkage, feedback, and co-evolution among the various stages of the innovation process from discovery through development to commercialization, and features interdependencies and dynamic learning across the various stages of the innovation process.
The open model of innovation posits relatively porous boundaries between firms and academic research programs as one key element of an innovative region and suggests a bi-directional flow of input between university and industry innovation, in the form of licenses on inventions, personnel, and tacit knowledge, as well as a flow from industry to the universities of new technologies and research directions. While parts of this model have been thoroughly studied and documented, the phenomenon of the stimulation of university research through the absorption of new directions emanating from industry has yet to be investigated in much detail. Our study addresses this issue through the examination of microarray technologies, particularly DNA chips. The GeneChip originated beyond the walls of the academy, but we demonstrate that within a decade it made significant inroads into reshaping the research environments of university programs as well as launching a spectrum of competitive industrial firms in several industrial sectors within the Silicon Valley and other innovation regions.
Consideration of the networked infrastructure of innovation leads to a re-examination of the notions of "invention" and "inventor" in contemporary technoscience. The lone, independent inventor, an Edisonian figure whose fertile mind was the source of inventions that shaped entire industries or even technological revolutions was a notion that well-suited the linear model of innovation. But the networked, co-evolutionary model of innovation in evidence in our study suggests a shift from single inventors to inventor collectives as a more appropriate unit of analysis of invention within the open systems of innovation characteristic of contemporary technoscience. The case of microarray technology richly illustrates this new mode of invention.
Margins of Invention: Re-dedicating Women's Prints in Early Modern Italy
Early modern printers and publishers of pictorial prints developed a framework in which they could claim authorship for and protect their inventions while distributing responsibility among as many different people as possible. This was beneficial for those who wanted to escape scrutiny by papal inquisitors, and for women who could sign their work without unintentionally taking credit for un-virtuous behaviors. Conventions of early modern print culture included noting on the face of the print the division of labor involved in its making: inventor, draughtsman, engraver, publisher and sometimes a separate financial investor were named in the margins of most prints. At least one of these agents was entitled to add a dedication to a patron as well, under whose name the print would be "sent forth." I look at the work of two women who produced prints in Rome between 1575-1625. Some of their prints were republished after their deaths by a man who specialized in giving new life to the old printing matrices the women left behind. Looking closely at the dedications crafted by the people who first claimed authorship of the prints (if not always of the images that the prints published) in comparison to the re-dedications of the re-published works, I try to articulate an explanation of who was entitled to claim the rights that we commonly assume accrue to the authors of images. The margins of these early modern prints show that authorial responsibility could be shifted among what today are termed patron, author and publisher.
Co-inventors and Co-authors: A Quantitative Analysis of Patent-Publication Pairs
Runaway Bride: Self-Possession and the Conditions of Intellectual Property
It is Locke's position, notoriously, that property rights elaborate an axiomatic individual self-possession. Having worked on some of the micro-histories that condition the assertion of a superficially coherent authorial property in the eighteenth-century, I feel the need to retrace my steps to account form -- or assist in accounting for -- the broadly-diffused recognition of self-possession. This paper will investigate the contribution of early seventeenth-century satire to the experience of outraged self-possession. A survey of new forms of publicity and, thence, new forms of celebrity and new practices of shaming will begin with reflections, not on His Girl Friday and Runaway Bride, but on Jonson's The Staple of News and Chapman's (lost) The Old Joiner of Aldgate.
Heroes of the Industrial Revolution, Defenders of the Pax Britannica:
The second half of the nineteenth century witnessed a brief interlude in British history when inventors enjoyed widespread popular recognition and approval. A representative few joined James Watt in the national pantheon (where uniquely he had represented the mechanical arts since the 1820s); their achievements were written into the grand narrative of the industrial revolution, and their names thereby entered the historical record and laid claim to posthumous fame. It is principally these men who, at the start of the twenty-first century, continue to form the British people's idea of 'the inventor'--who he is, how he works, what he achieves, and that he is indeed a 'he'. Consequently, it is important to understand how this image was born.
My paper takes its cue from the popular engraving, Men of Science Living in the Years 1807-8 , published by William Walker and George Zobel in 1862. Pace its title, this carefully composed group portrait is comprised principally of men famous for their inventions and engineering innovations, not their scientific discoveries. We will notice some surprising omissions, but the presence or absence of individuals is ultimately of less interest than the nature and timing of the project. Why was it published in 1862? Why was it set half a century earlier? I shall argue that Walker and Zobel's celebration of British inventive talent should be situated within the context of a provincial culture that promoted the claim of manufacturing employers and their workers to have made Great Britain 'great'. Against the bellicosity of aristocratic culture, the industrial middle and working classes preached a gospel of peaceful conquest through international trade and communication, one of whose principal heroes was the inventor. During the 1850s and 60s, this heroic version of British industrialization and expansion found expression in numerous histories and biographies (both collective and individual), in public art, and in exhibitions of machinery and iconic artefacts.
Advertising Cadavers in the Republic of Letters
In this essay, I sketch how late seventeenth-century Dutch scientific practitioners marketed their scientific products and inventions to an international clientèle. I focus on anatomists Frederik Ruysch (1638-1732) and Lodewijk de Bils (1624-1669), inventors of two separate anatomical preparation methods that could ensure that cadavers and body parts could be preserved in a lifelike state for decades or centuries. My paper investigates what concerns shaped the publications of such early modern anatomists. It claims that Ruysch's and de Bils' publications served as advertisements for commercially available prepared cadavers, coveted luxury objects in early modern Europe. These advertisements showed how aesthetically pleasing and scientifically important the cadavers were, but failed to disclose the trade secrets behing preparing the bodies. Concerns for secrecy and a desire for publicity explain together why and how these anatomical inventors entered the sphere of printed publications.
Copy-Write: Eighteenth-Century Educational Technologies of Imitation and Invention
This paper examines what might be called the "anti-invention" practices of early modern and eighteenth-century English student literacy, analyzing the changing relationship between pedagogical reading and writing across the period. Writing--in the context of the education of young men of means, though extending to other groups as well--was seen as a physical skill based in the act and art of copying others' text, starting with individual letters in copy books, moving towards brief moral aphorisms, and ending with the reproduction of entire pieces, often from the classical rhetorical tradition. This copying worked through a set of specific somatic techniques and technologies to literally internalize cultural norms and ideals within the student body. In this context, reading was a process meant to set off other processes, such as the oral production of knowledge through recitation or the hand's role in the collection and reinscribing of text within student commonplace books.
The paper examines the change in methods of literacy training that, I argue, emerged in the eighteenth century England not only from education theorists but from a print trade eager to cerate a demand for educational books. Because of the growing acceptance of a specifically print literacy, the student reader began to be imagined as the subordinate member of an hierarchal relationship, poised to absorb the superior mind of the literary or scholarly author. The technology of the book suppressed the student hand and voice and disaggregated reading and writing. The paper will discuss examples of this process ranging from early childhood to adult literacy.
An examination of the student subject of writing provides insight into the eighteenth-century construction of print literacy, especially in relation to the overlapping regimes of oral and hand production that persisted throughout the century. However, it also complicates implicit beliefs that currently inform understandings about technology and student learning across the disciplines.
Originality and the Law: The Case of W.H. Ireland's Shakespeare Forgeries
W. H. Ireland's Shakespeare manuscripts were arguably the most sensational case of literary forgery in the 18 th century. The case has been closely examined with regards to the 'critique of authorship', literary forgery and plagiarism, but the close interpenetration of the language of the law, and language of criticism, that permeates the creation and reception of the forgery has escaped critical attention. W. H. Ireland was articled to the law, and produced his forgeries in his chambers. The Irelands' greatest antagonist was Edmond Malone, himself a trained lawyer. More to the point, the question of the papers' authenticity was fought through legal discourse. Such language fundamentally conditioned Malone's arguments, spilling over into the papers' reception when George Chalmers (a prominent 'believer') became embroiled with T.J. Mathias (a cynical observer) over definitions of seditious libel. One may posit that this interpenetration was owing to the absence of a fixed disciplinary language for deciding issues of literary property, identity and rights. Such a disciplinary language did eventually emerge, and has since been naturalized, as 'English', or institutionalized literary criticism. The Ireland affair witnessed a decisive shift in the emergence of this critical language, but with unexpected results. The affair consolidated the position adopted by Malone: literary identity was a matter of national importance that ought to be left to legally trained experts, as opposed to a democratic 'republic of letters'. In other words, this highly public affair witnessed a drastic curtailment of the literary public sphere.
Novelty, Decorum, and the Commodification of Invention in the Renaissance
Francis Bacon's familiar claim that "Invention is of two kinds much differing: the one of arts and sciences, and the other of speech and arguments," coupled with his further claim that the invention of speech and arguments "is not properly an invention," indicates a turning point in the history of rhetoric. Invention in the arts and sciences, or technical invention, "discover[s] that [which] we know not," while invention of speech and arguments "recover[s] or resummon[s] that which we already know." Technical invention, which creates novelty, comes to be valued and powerful as property, while rhetorical invention remains a concern for decorum. This paper will explore the sources of this division and revaluation in Renaissance culture and their effects in subsequent rhetorical theory. It will support the claim that the virtue of decorum was eclipsed in the late Renaissance and early modernist period by novelty and that the changed balance between these two competing virtues helped to create the two very different understandings of invention that Bacon described and which still operate today. Renaissance conceptions of rhetoric accommodated novelty in the canon of style, but it was within the poetic tradition that novelty came to be valued. Any vigorous notion of invention in rhetoric was expelled from the art, on the continent by first Ramist and then Cartesian method and in Britain by empiricism. As invention became increasingly associated with commodified novelty--in both technics and poetics--it became increasingly dissociated from rhetoric. Rhetorical invention remains underdeveloped because decorum is still not balanced by a useful conception of rhetorical novelty.
From Homeric Epic to Open-Source Software:
Recent studies of the open-source software movement (e.g. Steven Weber 2004) analyze the social base of this field's inventiveness in competitive networks rather than hierarchical organizations. Although this research has important implications for current debates over the future of intellectual property law, its critical potential would be strengthened by the recognition that the open-source process is not new. Rather, as the work of the SCE has demonstrated, individual invention is the historical special case. In this paper I compare analyses of contemporary technological invention with folkloristic work on oral tradition. I illustrate commonalities of process in three settings: Homeric epic, traditional festival in modern societies, and open-source software. Each case exhibits parallel distributed innovation, that is, the simultanous reworking of the central "product" by multiple actors in an open social network under conditions of publicity. Reciprocal observation, imitation, and criticism maintain the unity of the product; more institutional mechanisms are developed as the product grows in complexity. Competition, regulated by community norms, stimulates engagement and invention.
Extrapolating from these three cases, I trace the history of this network-based invention process, formalized in the early stages of modernization, gradually marginalized by it, and finally superseding it. Properly understood, this history should bolster the critique of the current intellectual property regime, based in modern conceptions not just of creativity but of incentive. Both are more social than this regime acknowledges. Creativity, as a growing number of critics observe, is cumulative, dependent on public access to prior innovations. The incentive to create, as we learn from rhapsodes, software developers, and the Carnival artists who spend far more building a float than they can ever hope to earn in prize money, is rarely a matter of direct financial gain. The recognition of one's peer creators provides a much stronger motivation (and often, in the long run, higher profits).
At the same time, this history provides a vital corrective to current intergovernmental organizations' efforts to protect local tradition, based in a naïve notion of collective ownership by undifferentiated groups to which change comes only through outside interference. Against the complementary reifications of both individual invention and communal tradition, I show that competitive creative networks inhabit both the traditional and the cutting edges of modernity.
The Penguin's Paradox:
Recent efforts to construct a political economy of intellectual property have focused on the power relationships between intellectual property producers and consumers. The standard narrative is that large corporate interests such as pharmaceutical companies and the entertainment industry have been able to capture the lawmaking process such that the law has increasingly come to favor stronger intellectual property protection. This narrative has been extended to the international intellectual property framework with the observation that industrialized developed countries, which are home to most of these large corporate interests, have been able to dominate the trade negotiation process so that intellectual property treaties now largely reflect the interests of the developing countries.
This account of how intellectual property law and treaties have developed has significant empirical support. However, it overlooks some important aspects of how technology and scientific work is created, how ideas are spread, and how the development and dissemination of technology and scientific work is financed. In particular, none of the existing political economies of intellectual property account for the influence and role of open source production. This paper will fill that hole in the literature by examining how open source production fits or could fit into a political economy of intellectual property. The paper builds on my prior work on open source biotechnology and utilizes the game theoretic model I developed for analyzing imbalances in international intellectual property protection.
Inventive Artefacts: The Legal Agency of Plants
Bureaucracy at a Glance: Visual Evidence in U.S. Patents, 1790-2005
In the early 1870s the US Patent Office abandoned the use of small models and hand-colored drawings in favor of mass-reproduced black-and-white drawings. The prescription of standard conventions of light, shade, viewpoint, and labeling in these new drawings allowed them to be legible "at a glance," thus fostering the expansion of the patent system from a central archive in Washington DC to a dispersed network of depository libraries located throughout the country. But rather than see this legibility as a self-evident quality of modern engineering drafting, this paper argues that it was a specific historical construction, and that the stabilization of patent drawings went hand-in-hand with a stabilization of the idealized reader of patents, the "person skilled in the art." By defining this person circularly through her or his ability to read patent drawings, the successful combination of machinist, lawyer, inventor, examiner, and lay citizen rested as much on a mix of existing drafting conventions as on professional identity. In turn these legible patent drawings certified an innovation as inherently reproducible and sealed a potential gap in the legal theory of patent disclosure. Stable for over a century, patent drawing conventions were eventually un-constructed in a similar way: when in the early 1980s patent law increasingly became the purview of specialized lawyers and the new Court of Appeals for the Federal Circuit, the number of patent drawings using the standards of "at-a-glance" legibility declined drastically, as their changing conventions mirrored changes in their fictional reader.
"Ours and For Us":
This paper examines the importance of invention for working class economic and political power in the Mechanic's Magazine and other works of its co-editor, Thomas Hodgkin, including Labour Defended Against the Claims of Capital (1824). Following a lineage of periodicals devoted to the publication new patents granted for mechanical inventions, the Mechanic's Magazine appropriated the format for radical purposes. The Mechanic's Magazine was the first periodical in Britain that had the explicit aim of targeting plebeian readers with useful knowledge. Rhetorically akin to the plebeian educational radicalism of Richard Carlile and the Zetetic movement he inspired, the history of the Mechanic's Magazine belies the conventional notion that the 'knowledge industry' in Great Britain was solely a matter of middle-class "control" of the working classes. Rather, with its radical educational program promoting the study and use of science and technology for gaining social, material and political power, The Mechanic's Magazine and its co-editor's subsequent texts encourage the working classes to gain control of knowledge to rid the nation of capitalists.
Having been perhaps the first popular political economists to unravel the implications of the labor theory of value for working class politics, Hodgkin went on to redefine labor in terms of the accumulated knowledge of skilled laborers, making the working classes the primary 'authors' of scientific and technical invention. This chapter in the history of invention as intellectual property thus suggests that the notion can serve a positive political role for subaltern publics.
Technology and Invention:
In the terms posed by this conference, how can and should we understand the relationship between technology and invention? We will argue that our understanding of this problem has been muted intellectually by the comforting but now outdated binaries of the technodeterminism debates. To engage those debates--through Latour and Chandler, Williams and McLuhan--without reinscribing the binary is a very difficult task. We take it as an exercise in transposing features of binaries in order to collapse them--and of valuing intention without sacralizing it as necessarily causal. We will proceed, in part, by constructing new etymological and social histories of "technology" and of "communication."
By grounding both inquiries in histories of specific social and technological forms--clubs, conferences, committees--we will try to historicize "invention" itself. And, just as the Society for Critical Exchange's earlier work helped us to grasp the importance of reconceiving the "Author" as the "Author-function," so our reworking of the technodeterminism binary may give us a newly-enabling take on the "human": as something not to preserve or to pass beyond (i.e. "posthuman") but as a historically-specific way of rendering technological and social change as a "Human-function."
Authoring an Invention: Nineteenth-Century American Law and Patent Authorship
In the 18 th century, the best known inventor of the American colonies, Benjamin Franklin, refused to consider seeking a patent for his new stove. Instead, Franklin authored, printed, and sold a pamphlet which described his invention and the scientific principles behind it, a document which thus served triple-duty as a marketable commodity, a set of instructions for constructing the stove, and a building block in the creation of Franklin's scientific reputation. By the late 19 th century, premier inventor Thomas Edison enthusiastically engaged in the publication of his ideas as patents, documents, which, like Franklin's pamphlet, were commodities, included instructions, and enhanced his reputation. But unlike Franklin, after generating his inventive ideas, Edison used other people to describe the ideas in words, and to publish the verbal form of the ideas. Edison relied upon ghostwriters to author his inventions.
My paper traces the 19 th century separation of inventors from the authorship of their inventions, through the development of the patent system. This separation was actively sought by the government employees in the developing patent office, by legal practitioners, and by members of a new profession, that of patent agent, who all struggled to encourage inventors to consider patents as a taken-for-granted step in the commercialization of invention, and to train inventors to author patents by hiring patent practitioners as ghostwriters. By an examination of the advice given to inventors by each of these participants in patent authorship, I consider the development of a new form of ghostwritten authorship of invention.
Patenting the Bomb: Nuclear Weapons and/as Intellectual Property
Practices of patenting and practices of secrecy have traditionally been invoked as polar opposites in literature on intellectual property; the former a practice of openness, the latter, concealment. But during the Second World War, this truism was turned on its head in the patent practices of the Manhattan Project, when an army of government patent agents worked to secure secret patent applications for the atomic bomb and its methods of production. When the aggressive wartime patenting program became publicly known after the war, it provoked one Senator to confront its chief administrator pointedly, "What is the necessity for covering the bomb itself by applications for patents?" The reply offered--so that the government would have first-to-file status, which helps with interference lawsuits--not only did not answer the question, it begged it.
In my paper I will examine three interconnected wartime patent practices: the vigorous pursuit of title-taking patent policies against contractors and project scientists by Vannevar Bush; the production of thousands of patent applications, in 493 different subject classes, covering everything "from the raw ore as mined to the atomic bomb," many of which have neither been released nor ever will be; and the wartime censorship of the patent applications filed by private inventors. The ultimate goal is to seek a satisfactory answer to the central riddle: Why patent the bomb? Why have the motivations for a patent program, spoken of as vitally important by head Manhattan Project officials, become utterly incomprehensible today? The answer to, borne out of careful scrutiny of a history which has been almost completely ignored until now, lies in a re-examination of two standard assumption: the openness of patents, and the secrecy of nuclear weapons.
©®EA TM : Intellectual Property Education Contest and Resource Guides for Grades 2-12
Downloadable versions of the resource guides and contest entry information are available at www.invent.org/contest .The United States Patent and Trademark Office (USPTO) and the National Inventors Hall of Fame Foundation, Inc. (NIHFF) are launching a national competition and accompanying resource guides aimed at increasing students' confidence in their abilities to explore, discover and create, while teaching them the importance of patents, trademarks and copyrights in America's history and future.
©®EA TM is a student challenge and classroom supplement for students in grades 2-12 based on invention and problem solving. The goal of the program is to reach out to a broad base of students and get them excited about their futures, thereby nurturing the creative potential of students and ensuring future generations of inventors.
The ©®EA TM Contest and Resource Guides serve three grade divisions: elementary grades 2 - 5, middle grades 6 - 8 and high school grades 9 - 12. The challenge has a different theme each year and is supported by an on-line submission process.
The theme for the 2007 ©®EA TM Contest is Alternative Energy - Transportation. Teachers are encouraged to have their students invent, create or design solutions to this challenge and submit their ideas to the national competition. Solutions are entered through an on-line submission process at www.invent.org/contest .
The ©®EA TM Resource Guides have been aligned with national standards in science, mathematics, language arts, social studies and fine arts. The activities can easily fit into your classroom pacing without changing normal scope and sequence.
Brenda Shumate Wojnowski, Ed.D., President, Inventive Education, Inc., NIHFF
Of Monks, Medieval Scribes, and Middlemen