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Intellectual Property Rights: 

 A Hydra, a Minefield, a  Recognition of Human Achievement

A little History

There is perhaps no subject of human enquiry that is as historically misunderstood as "Intellectual Property Rights".  When compared to most any other subject, except perhaps religion, Intellectual Property has the distinction of alternately having been more intensely overvalued and undervalued, admired and despised, credited and blamed, praised and denigrated, respected and violated, over- and under-regulated, than most any other human asset, in sum, generally misrepresented to a degree unbestowed on most anything else . The level of consideration people have had for the Rights to Intellectual Property has generally tracked, with a time lag commensurate with their economic and political relevance to mankind, the attention given to the property itself.

In effect, the attention given to Rights has followed  a three-dimensional, multi-phase fluctuation of intensity over time and space, virtually un- unmatched by that given to most any other bundle of rights, guaranteed to generate and perpetuate conundrums everywhere. This fluctuation in mankind's attention is in sharp contrast to the gradual growth of its interest in other pursuits such as commerce and technology.  For  instance, technology, despite a few periods of apparent quiescence in its development, has, over the millennia and in cultures the world over, sustained a fairly steady growth, with few significant relapses, from the Stone Age to the post industrial era we are entering today.  Some may  fantasize about earthly vestiges of monuments attributable to a supposedly technologically advanced race, but there is no serious evidence of a body of technology, centuries or aeons ago, remotely matching or surpassing today's.  

Commerce, likewise, seems to have steadily advanced in complexity and sophistication, at least over recorded history.  Temporary slowdowns in Europe during the post-Roman and pre-Renaissance eras are either inconclusively proven or not significant enough to interrupt a centuries-long history of growth.

Both of these yardsticks, commerce and technology, are of course closely related and integrated, as are other measures of human development, such as art and other vehicles of self-expression, and all have in their wake generated territorial concepts of rights.  One might say that a claim of rights staked today in a courtroom to a commercial or technological advantage is neither categorically different from nor less ferocious than the exclusivity sought with tooth and claw by wild species to carcasses of prey, territories marked by body fluids, or mates and offspring. The human species has found it useful to enshrine these rights in laws and inveterately used documentation to perpetuate their universality. It is no surprise Moses found it necessary to bring down inscribed Tables from his divine encounter so the "chosen people" might be able to verify the authenticity of the Word.

Human laws, with some notable exceptions, mostly dealt with man's relationship to things tangible and, at least initially, portable objects about which a "Thou shalt not Steal" could easily be understood. Notable exceptions addressed societal imperatives such as not killing, not coveting another's spouse, honoring one's elders and loving the One who had the foresight to document all of these "shalt" and "shalt not" in the first place. 

 Laws against killing and lesser offenses could, after all, all be subsumed under the Law of the Talion, of biblical resonance, fundamentally institutionalized revenge. In their simplicity, these laws did not need a great deal of mental gymnastics to articulate or enforce. Laws relating to person to person relationships could likewise fit within the confines of personal or generational memory, but laws relating to personal property, passing from generation to generation, from seller to buyer or from owner to thief and later extended to real property, had to be far more differentiating. The imperative against theft was the one that was most likely to produce a progeny of laws unequaled in any other sector of human behavior. Other property laws followed, with longr lasting effect, as a myriad situations arising from the holding of property, both personal and real, developed over the centuries.

In Roman times, jurists were able to separate use from ownership. The "usufruct" was a creation of the law, allowing one to enjoy the benefits of an estate owned by another. In early English common law, a related though intellectually different concept likewise allowed successive non-owners to enjoy most of the benefits of occupancy, sometimes for their entire lives, leaving the owner to his reversionary rights, to enjoy when such lives ended.  Thus continued a tradition of rights disconnected from physical possession or "seisin", still in use today.

As long as the underlying property was tangible and readily held, the possession and "seisin" of it were concepts of rights that peacekeepers could work with, even when, as with seisin, the item might not actually be portable. It was sufficient if the item could be identified as the work of human hands, or the subject of human physical activity or control. The later intellectualization of  such rights - so that, to claim them, one needed not necessarily be in actual possession and control of the item - marked a watershed in the development of rights of ownership and may be thought of as the origin of many new forms of ownership, disconnected from the strict physical grasp of the claimant.  From then on, the complexity of rights and their remedies for their violation increased exponentially.

For example, the reversion right of an owner to land he cannot occupy, because someone else, e.g. a tenant, can, is called a "future interest", not a tangible thing, but can be transferred for value, divided into many separate strands, likewise intangible and valuable, over time and space, ad infinitum.  Historically, it may be viewed as the ancestor of the entire law of trusts, a prime example of complexity by any yardstick. To be sure, semantically, the right to anything can be said to be "intangible" since one cannot "touch" any right, but in practical terms, a present possessory right, for the holder, is a lot more "tangible" than that of, say, an owner of only the reversionary right disconnected from possession. The concept of such disconnected rights  took a great leap forward when the idea was born that property could be seen as a bundle of rights, some of which could be separated from the bundle and controlled, using today's parlance, "virtually" rather than physically. It is to that idea that rights to things that were themselves "intangible" can ascribe their lineage.

Though, originally, this intellectualization of rights applied only to land, it did not take long to conceive of it as equally applicable to portable items, as long as the underlying thing could be seen, touched, and identified, a physical item susceptible of protection. Throughout the Middle Ages and the so-called Modern Era, refinements of the concept were devised to handle an increasingly sophisticated view of property rights, driven by the complexities of a widening commerce, the fragmentation of medieval society and changes in the social order.  It took a while longer before a product of  mental activity, lacking a clear, tactile identity, could qualify for protection. That was a  major step forward.  Previously, protection attached to the right to a physically manifest and intrinsically useful object, say, land or an ox. In that context,    the physical manifestation of the mental activity, say, a book, has no intrinsic value, save perhaps as a doorstop. People began to recognize that it was is the thought behind the book that must be protected, not the paper and the ink. Today, under the right circumstances, many rights are recognized in the products of mental activity.  They are now lumped  under the heading of "intellectual property rights".

The price to pay for extending rights to intangible things was added complexity and uncertainty in a field that already had accumulated a wide diversity of problems and solutions over the centuries. 

(continued on page 5-2)



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