The Invention of Intellectual Property
Copyright, patent, and trademark are not natural rights: they are legal instruments invented at specific times to serve specific interests. The expansion of intellectual property rights over the past forty years was a deliberate political project, pursued by specific industries, over the objection of economists who predicted (correctly) that it would harm innovation. Understanding this history is essential for evaluating current claims about AI training data, open source licensing, and platform ownership of content created by users.
The Statute of Anne, enacted in England in 1710, is generally identified as the first copyright law. It was not passed to protect authors, but to end a monopoly held by the London Stationers’ Company, a guild of printers that had controlled the trade in printed books since the sixteenth century, and to create a new system of publisher monopolies that would operate for limited terms. Authors received rights in the statute, but only to the extent that they assigned those rights to publishers, who were the real beneficiaries of the act. The framing of copyright as a natural right of creators, which dominates popular and political discussion today, was a later construction that reversed the actual historical origin.
Patent and copyright terms have been extended repeatedly, almost always to be longer, broader, and allow fewer exceptions. United States copyright terms have moved from 14 years under the Copyright Act of 1790 to the current life-plus-70 years. (The 1998 Sonny Bono Copyright Term Extension Act was timed to prevent the earliest Mickey Mouse films from entering the public domain.) Patent terms have been less dramatically extended, but the scope of what is patentable has expanded substantially, particularly with the rise of software patents. Each extension was the result of lobbying by specific industries, over the objections of economists who consistently argued that the existing terms were already longer than necessary to incentivize creation.
Pharmaceutical companies have been extremely effective at shaping intellectual property law globally. Beginning with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994, high-income countries required all members of the World Trade Organization to adopt patent standards that matched or exceeded their own. Countries that had deliberately excluded pharmaceutical products from patentability in order to build domestic generic drug industries, including India, Brazil, and several African countries, were required to change their laws. The result was a substantial transfer of rents to pharmaceutical companies operating in rich countries, and a significant increase in drug prices in countries that could least afford them.
Software patents are a category of intellectual property right whose practical operation differs substantially from the stated purpose of the patent system. The original argument for patents is that they encourage disclosure: an inventor gets a time-limited monopoly in exchange for publishing a description of the invention sufficient to allow others to replicate it after the term expires. In contrast, software patents are often written at high levels of abstraction, covering broad categories of computational method rather than specific implementations. They are concentrated in the portfolios of large technology companies, financial institutions, and patent assertion entities: organizations that hold patents without producing anything, but derive revenue entirely from licensing and litigation. Software patents are used primarily against smaller companies and open source projects, which lack the resources to defend extended litigation.
Open source licensing emerged in part as a response to the expansion of intellectual property rights over software. The GNU Public License (GPL) and its relatives use copyright law against itself: the license grants broad permissions that apply only on the condition that derivative works carry the same license, making it legally difficult to take open source software and close it. This has only been a partial success: big tech companies have learned to extract enormous value from open source software while contributing relatively little back, because their primary product is not the software but the service running on it.
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- Baldwin2014
- Peter Baldwin: The Copyright Wars: Three Centuries of Trans-Atlantic Battle. Princeton University Press, 2014, 978-1400851911.
- Bellos2024
- David Bellos and Alexandre Montagu: Who Owns This Sentence?: A History of Copyrights and Wrongs. WW Norton, 2024, 978-1324073710.
- Bracha2019
- Oren Bracha: Owning Ideas: The Intellectual Origins of American Intellectual Property, 1790-1909. Cambridge University Press, 2019, 978-1108790697.
- Doctorow2022
- Cory Doctorow and Rebecca Giblin: Chokepoint Capitalism: How Big Tech and Big Content Captured Creative Labor Markets and How We’ll Win Them Back. Beacon Press, 2022, 978-0807007068.