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‘Intellectual Property and its History’: What can we learn from CREATe Public Lectures, Autumn 2021?

Posted on    by Elena Cooper

‘Intellectual Property and its History’: What can we learn from CREATe Public Lectures, Autumn 2021?

By 25 November 2021November 29th, 2021No Comments

In this Blog, Dr Elena Cooper, who convened the CREATe Public Lectures this term, reflects on the importance of historical approaches to intellectual property research, as explored in these events.

It has been a real pleasure to open the CREATe Public Lecture Series for 2021-2022, with lectures from Dr Anjali Vats (University of Pittsburgh, USA) and Prof. Kathy Bowrey (University of New South Wales, Australia), exploring the theme of ‘Intellectual Property and its History’. While we continue to miss meeting in person in our historic Humanity Lecture Theatre, we were delighted that our virtual events reached a yet wider audience, both nationally and internationally, including attendees who are new to CREATe. In the coming weeks, two CREATe PhD students will be publishing their reflections on the talks and we are also endeavouring to make recordings of both lectures available on-line. In this blog, I give our readers a taste of some of the insights into ‘Intellectual Property and its History’ offered in these lectures and the resulting discussion.

The Autumn 2021 Public Lecture Series is not the first time that CREATe has turned its attention to the past. CREATe, though founded (in 2012) expressly to research copyright’s future, has always included copyright history as one strand of its research. To this end, CREATe has hosted three copyright history events: the Copyright History Symposium in March 2015, the annual workshop of the International Society for the History and Theory of Intellectual Property in July 2016, and finally, as part of the CREATe Symposium in October 2019, a copyright history roundtable and lecture, the latter co-sponsored by the British Literary and Artistic Copyright Association. Further, as we will explore in the first of our CREATe Digital Resources Events (to be held on-line on 15 December 2021, 5.30pm UK time), CREATe is also one institution behind important copyright history digital resources: Primary Sources on Copyright History 1450-1900 and Stationers’ Register Online.

The assumption at CREATe, then, is that the past matters, not just to legal historians, but also to those researching copyright law today and thinking about copyright’s future. How did our discussions with Anjali Vats and Kathy Bowrey in the recent CREATe Public Lectures deepen our understanding of the value of historical approaches?

As I discussed in a previous blog post, both Anjali Vats and Kathy Bowrey have recently published important monographs which draw out new aspects to the history of intellectual property. In The Color of Creatorship: Intellectual Property, Race and the Making of Americans (Stanford University Press, 2019), Vats explores the relationship between US intellectual property law and racial injustice, through changing ideas of citizenship from the eighteenth century to the present day. As I argue in reviewing this work for Social and Legal Studies, whereas scholars have long recognised that only certain types of contribution ‘count’ for protection, the emphasis, particularly in copyright research, has been on aesthetic bias (the influence of Romantic authorship on copyright). Vats’ account is radical, then, in asking direct questions about the relationship between law and social injustice, specifically racial injustice, and in being the first monograph-length study to trace the history of this relation over a longitudinal time-period.

Kathy Bowrey’s Copyright, Creativity, Big Media and Cultural Value: Incorporating the Author (Routledge, 2020) is also an important first: the first historically grounded account of the emergence of the ‘Big Media’ corporates of the twentieth century (publishing, film and music). As well as providing an in-depth account of copyright history in the little explored period of the late nineteenth and early twentieth centuries, Bowrey’s monograph innovates in placing business records, copyright transactions and marketplace norms at the centre-stage. As she states in the opening of her book, copyright’s central category of ‘authorship’ is found at the intersection of ‘cultural, political, legislative and business activity’ (Bowrey, p.3). This approach, as Bowrey ably shows, enables the legal historian to strip bare the relation between law and corporate power, amongst other things.

Both lectures demonstrated that legal history, as well as a valuable form of scholarly enquiry on its own terms, is also a powerful critical tool. In her lecture, Vats outlined her general methodological approach informed by Critical Race Theory. Interestingly, Vats sees herself as a modern lawyer, not a legal historian. Why, then, does she look to history? It seems that Vats looks to the past to trace the historical origins of the link between race and intellectual property that she sees as persisting in the law today. That this is shown to be deeply embedded in US history and the US nation-building story, makes the racial inequalities that persist in US intellectual property law today both clearer and more troubling.

Turning to the second lecture, Bowrey’s focus was on a single strand of the research contained in her book: the story of the emergence of film industry in the early twentieth century, whereby the ‘natural rights of the author were de-natured and diluted’, and copyright’s function in rewarding creative activity was ‘fundamentally disrupted’ (Bowrey Chapter 5, p.136). In the extended Question and Answer session we discussed Bowrey’s use of legal history as a tool of ‘scrutiny’: casting critical light on developments that have never been in public view (due to the emphasis on industry self-regulation and lawyers’ focus on positive doctrinal law in the early twentieth century, see Bowrey p.136). It is by bringing to light, for the first time, legal and business records that have never been seen before, many held in private hands, that Bowrey can critically analyse the highly important yet hugely under-explored relation between copyright and power.

Those interested to hear more about copyright history, are warmly invited to attend the online Copyright History: CREATe Digital Resources event on 15 December 2021, 5.30pm UK time which will feature presentations by Prof. Jane Ginsburg, Prof. Ian Gadd and Dr Giles Bergel, with Prof. Lionel Bently and Prof. Martin Kretschmer also joining the conversation.

More information about the release of the recordings of the CREATe Public Lectures delivered by Dr Anjali Vats and Prof. Kathy Bowrey will be posted in due course on the CREATe blog/newsletter. To sign up to our newsletter, please click here.