Sean O’Connor’s Historical Take on Different Types of Intellectual Property

The following post comes from Professor Camilla Hrdy of Akron Law. It originally appeared on Written Description, and it is reposted here with permission.

By Camilla Hrdy

I truly enjoyed Sean O’Connor’s new paper, forthcoming in the George Mason Law Review, called “Distinguishing Different Kinds of Property in Patents and Copyrights.” It is somewhat sui generis. But I guess I would describe it as a ‘legal-historical take on how people perceived intellectual property in the past, with theoretical implications for IP today.’

In O’Connor’s overarching framework, there are two kinds of IP. On one side, are preexisting state-of-nature rights in secret technical know-how and unpublished expression that is maintained through labor and attempts at secrecy. (I’ll call this type 1 IP). On the other side, are state-sanctioned patents and copyrights that are obtained in exchange for revealing those first rights to the public. (I’ll call this type 2 IP).

These two forms of IP are separated from one another by the act of “publication” on the part the author or creator, which transfers the rights from the private to the public sphere; and by the involvement of government, which protects exclusivity in order to encourage the act of publication and transfer to the public sphere.

O’Connor paints this distinction between type 1 and type 2 IP in a historical light, suggesting that the first came first, and the second came second. People have always had “de jure or de facto rights to maintain secrecy and exclusivity of private knowledge and skills[,]” he writes. The second type of property came only later, when “states formalized ad hoc exclusive patent and copyright grants into roughly standardized, deeded, and assignable property.” (3-4)

There is way too much good in this article to give it justice in a summary. It is full of insights on medieval publishing practices and Venetian patents, and is beautifully written. I highly recommend the full article for anyone looking for “something completely different.”

In my read, the big upshot for current IP theory is O’Connor’s view that the historic purpose of patents and copyright was “not to incentivize the authorship or invention of new things. Such creation had been taking place, often quite prodigiously, throughout human history.” (2). Instead, it was to encourage sharing those things by transferring them from the private to the public sphere. “From at least Greco-Roman antiquity,” O’Connor writes, “an important divide was acknowledged between the private and public spheres. An intentional act of publicare was required to transfer something from the private to the public.” (2). He argues that this transfer would not occur as frequently as desirable without patents and copyrights.

The lesson from this historical account, suggests O’Connor, is that if patents and copyrights were abolished or weakened, we might get more secrecy and less publicness.

“[W]e could inadvertently recreate the excessive use of secrecy that arguably hindered progress—in the sense of building off of existing knowledge available in the public sphere—in the time before proto-patents and proto-copyrights emerged in the Renaissance. Robust IP protections, together with appropriate limits on abuses of state-granted exclusive rights, will encourage more creators and innovators to choose the public disclosure and commercialization route.” (54).

This normative account seems similar to the oft-stated “exchange for secrets“/disclosure function of patents, as well as the Kitchian commercialization/coordination function. But O’Connor suggests that the “exchange for secrets” premise and its brethren are more central than is appreciated. The message I get is: lest we return to the Dark Ages, we must retain incentives to make secret knowledge and expression public.

Another upshot, albeit not much emphasized in the paper, seems to be that the “monopoly” concern many have with intellectual property is generated primarily when the state takes back what people know or already have access to — in other words, where one person’s patent or copyright impinges on other peoples’ preexisting rights to what they previously knew or used commercially. O’Connor refers to this briefly, writing (in his discussion of post-sale restrictions on chattels and the like)

[t]his view adopted Lord Coke’s sense of “monopoly”—as a legal term of art—as meaning only instances where the state took something back from the public that it previously had (most relevantly, when exclusive rights were given to a few individuals for a commodity or commercial trade that the public freely used or practiced before). (47).

I thought this interesting tension between type 1 IP and type 2 IP could have been drawn out more.

The main quibble some people might have with the article is at odds with why I personally like it. I like it because it’s original and out-of-the-box, and isn’t shy about reaching bold normative conclusions and engaging in some speculation. O’Connor sometimes provides extensive insights into what people thought about IP, going back as far as ancient and even hunter-gatherer times. (See, e.g. p. 22). But of course we can’t know that much about what people thought about IP, especially not at the theoretical depth O’Connor engages in, except what we can glean from the sources where certain individuals discussed it. I am often amazed at how many relatively rich accounts we have from Jefferson, Washington, and others during the creation of the American patent and copyright regimes in the late eighteenth century, and it still seems like it’s not enough, with conflicting versions coming out all the time. On the other hand, maybe O’Connor’s willingness to take creative leaps is better than saying “well I can’t tell you what I think they thought because I don’t have the data.”