The Intellectual Property of Nations: Returning to Our Beginnings in Christian Legality
An Overview by Laura Ford
Laura Ford’s The Intellectual Property of Nations will be published by Cambridge University Press in June 2021.
The Church is based on the knowledge of the one eternal God, who as such became man and thereby proved Himself a neighbor to man….The inevitable consequence is that in the political sphere the Church will always and in all circumstances be interested primarily in human beings and not in some abstract cause or other, whether it be anonymous capital of the State…or the honour of the nation or the progress of civilization or the idea, however conceived, of the historical development of the human race.
– Karl Barth, “The Christian Community and the Civil Community” (1946)
At its worst, the world system is represented by the capacity of the computer to digitalize all human experience.
– Harold Berman, “Law and History After the World Wars,” (1988)
AI does not need to mimic human thought processes or perceive the meaning of its actions. It simply needs to automate human intellectual activity. AI does not need to think – just do. – Ryan Abbott, The Reasonable Robot (2020)
2020 will be remembered as the year of the Global Coronavirus Pandemic, but the name of the virus (COVID-19) reminds us that the pandemic’s global spread began in 2019. It is hardly hyperbolic to argue that the long year stretching from fall 2019 to the end of 2020 has been fundamentally transformative in ways that we can now only begin to know.
One striking development culminating in this period, but hardly noticed in the din of angry politics, has involved intellectual property claims – particularly patent claims – to artificial intelligence (AI), extending most dramatically to claims that AI has reached the capacity to artificially invent. Triggered partly by the Artificial Inventor Project’s strategic campaign of global patent applications, policy discussion has been joined by intellectual property offices around the world, including the European Patent Office (EPO), the Japan Patent Office (JPO), the United States Patent and Trademark Office (USPTO), and the World Intellectual Property Organization (WIPO) in Geneva. These respective organizations have published an array of reports, documenting an increasing rate of AI-related patent claims, accelerating around 2013.
The legal responses to patent claims made on behalf of an AI inventor – DABUS, an acronym for “Device for the Autonomous Bootstrapping of Unified Sentience” – have so far been negative. The claims relate to two inventions: a food/beverage container and a “neural flame” (a pattern-based method and device for attracting attention). The claims have been rejected by patent offices on the grounds that patent law requires inventors to be human beings, and this basis for rejection has been judicially upheld in the UK. (In the US, a legal challenge is currently pending.)
The question, pointedly raised by the Artificial Inventor Project, is why? Why should our intellectual property laws – patent law particularly – privilege human invention, if computerized systems of data processing have achieved the technical capacity, through highly sophisticated programming, to meet the legal requirements for patent-eligibility?
More broadly, why should our law privilege human creativity and innovation, if computers can do everything that we legally require, except be human? What, if anything, is legally special about human creativity?
This question is coming at a time when we are not well-prepared to answer it, if indeed we ever were. The legal reasons for rejection have been definitionally formalistic: AI-generated inventions cannot be patented because AI is not a natural person, and the law requires inventors to be natural persons.
The answer: Non-natural persons – such as nation-states, corporations, and AI – cannot perform mental acts like conception. But this answer, of course, depends on a particular conception of conception, one that might simply presume a set of humanistic commitments axiomatically. We return to our basic question: why should humanistic mental processes be legally privileged by our intellectual property laws?
Ryan Abbott, author of The Reasonable Robot and an architect of The Artificial Inventor Project, asks us to question our humanistic prejudices for two basic reasons: (1) we will more effectively promote the basic purposes of intellectual property law, which are to encourage creativity and innovation for the good of society; and (2) we will more effectively protect the integrity of our legal system by (a) eliminating powerful incentives for dishonesty, and (b) preventing other distortive incentives, for example in tax law.
By continuing to formalistically privilege human inventors, we will not eliminate the use of AI in generating inventions; we will only create incentives to disguise it. AI is here to stay, and it will dramatically challenge our basic assumptions about law and society. Abandoning our humanistic prejudices – by adopting a systematic position of “legal neutrality” between humans and AI – is a better way to face these inevitable facts, and to contribute to human well-being, according to Abbott.
By forcing us to confront the legal, ethical, and religious bases for our humanistic commitments, and by raising these questions in relation to AI-generated intellectual property, the Artificial Inventor Project is performing a valuable political service. But the conception of society (and, therefore, of social benefit) that drives Abbott’s analyses is terrifyingly thin. Only the narrowest of social conceptions, rooted in neo-classical micro-economic theory, could presume, as Abbott does, that a higher rate of innovation – which he argues we would achieve through recognizing AI-generated inventions – is necessarily better for society.
This thin conception of society is widely shared by apologists for strong intellectual property rights. But they are not alone. A logic according to which the new, novel, and innovative makes our societies better – our nations, our political communities, our families, our schools, and even our religious communities – runs at the level of a foundational code in our contemporary world.
In a forthcoming book, The Intellectual Property of Nations: Sociological and Historical Perspectives on a Modern Legal Institution (Cambridge: June 2021), I present this logic as a secular salvation-story, which is embedded with intellectual property law into our modern, nation-state system. In the remainder of this essay for The Canopy Forum, I reprise and sharpen selected themes from the book. Although I write here from a more openly Christian point of view, I hope that the concerns I raise, and even the values I seek to defend, will resonate with concerned citizens of all religious viewpoints, including ethically committed atheists.
When I say “we” and “our,” I am deliberately ambiguous, hoping and believing that we are all in this together, and that a Christian invitation can speak broadly, even when it is ultimately not accepted.
The Ends of Intellectual Property Law: National Power and Wealth in Endless Innovation
Intellectual property law, broadly speaking, establishes and defines property-related rights (and obligations) with respect to knowledge-based, intangible assets. These assets, as legally defined, are embodied in inventions (patent law), tangible forms of creative expression (copyright law), images and slogans that distinctively identify the commercial source of consumer products (trademarks), and secret forms of valuable know-how through which companies seek to preserve their competitive advantages (trade secrets). Intellectual property is a relatively new addition on the horizon of legal history, and my book seeks to grapple with its social sources and origins.
Writing as both a sociologist and a lawyer, I have sought to understand the emergence of intellectual property by placing it into a broader, sociological context for state-formation. In doing so, I have drawn especially on the macro-historical sociology of Michael Mann. Mann’s sociological perspective on world history draws our attention to the sources and leading edges of social power, analytically distinguishing social power into four ideal types: ideological/cultural, economic, military, and political (IEMP). Mann acknowledges that he has somewhat neglected the role of law, and I have supplemented Mann’s perspective with insights drawn from recent scholarship on early medieval legal documents (charters and writs), western legal history, and classical sociology (especially the neo-Kantian perspectives of Max Weber and Emile Durkheim).
I have sought to understand what intellectual property is and why it exists by showing when and where it emerged, as a new type of legal institution, and by showing how it functions within our contemporary structures of social power.
I pinpoint the “where” and “when” of intellectual property’s emergence in eighteenth century Britain, and specifically in the cases of Millar v. Taylor (King’s Bench, 1769) and Donaldson v. Becket (House of Lords, 1774). This was the moment, I believe, when intellectual property was explicitly recognized as a new type of legal property under English common law. In these cases, analogies were recognized between patents and copyrights, and the “intellectual” character of the rights at issue was explicitly addressed; indeed, the appropriateness of recognizing this new, intellectual type of property was a source of controversy between judges who disagreed with one another in lengthy opinions.
Shortly afterward, in the revolutionary American colonies and in revolutionary France, the recognition of intellectual property went further, becoming part of the constitutional foundation for these earliest nation-states, and thereby for the formation of the nation-state system. So Britain (ambivalently), the US, and France, in that order, may be considered as the progenitors of modern intellectual property law. In saying this I am not actually saying anything new, although I have been perhaps more bold (foolhardy?) about asserting an “origins story” for intellectual property, as a holistic legal institution.
There are several things, though, that do make my story of intellectual property different. There is, first, the fact that I embrace narrative as a method. This is not at all novel, but it is controversial. In seeking to understand intellectual property, and especially the reasons for its existence, I try to tell a story about it. In doing so, I am seeking to know it, as a legal institution, in much the same way that we get to know human persons. Do institutions have stories, analogous to human stories, which can help us to know them? I think (I cannot say I know) that the answer is yes.
Stories have plots, which can be summarized in a beginning, a middle, and an end. In my story of intellectual property, I begin at the end, and I circle back around to that end, approaching it from a slightly different angle. I tell my story, in other words, in the form of a ring. This chiastic structure has literary foundations in Biblical and Greco-Roman writings, as historians of the classical world and literary critics have emphasized. Shaped by canonical forms of western literature, I have learned, as Mary Douglas puts it, to think in rings.
In telling my circular story, I argue that intellectual property has emerged as an intrinsic part of an existential project in social power, the project to build a well-designed state, and then a system of national states, which will generate wealth and welfare through the harnessing of human creativity and innovation.
This is the end (the telos, or goal) of intellectual property, especially as seen from a US perspective. Some will want to add that intellectual property protects moral rights of authorship, which transcend economic goals. But the origins story of intellectual property shows, I think, that personal rights have always been instrumentally embraced as part of a broader legal rationale, which is ultimately about the good of the political community, rather than the author or inventor. Personal rights are instrumental for civic-social rights, in intellectual property law. This was true for the earliest Venetian patents, and it remains true for the justifications of intellectual property that are given today in the language of welfare economics.
Intellectual property is good for society, according to the instrumentalist rationale, because it creates incentives for creativity and innovation — incentives which would otherwise be insufficient or inadequate, given the nature of public goods in market-based societies. (The justification for trademarks is slightly different, but also quite instrumentalist: recognition of trademark rights supports the “integrity” of the marketplace by helping consumers to distinguish the sources of their consumer products.) These instrumentalist justifications are buttressed by more absolutist, natural rights-based arguments, and by Romantic notions of authorship, but the absolutist justifications are always relativized by the temporally-limited character of the rights, and by their ultimate justification in the wealth and well-being of the (national) society.
Today, intellectual property is part of a globalized system of world trade between nation-states, organized through The World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO), defined through a host of multi-lateral treaties, including the TRIPS Agreement (effective January 1, 1995). Under significant pressure, exercised partly through the WTO and WIPO, nearly all nations of the world now embrace intellectual property principles. The impacts of this embrace can be seen most dramatically in China, which has come (in an astoundingly short period of time) to profess intellectual property protection as the state’s “sharp weapon” for achieving national power and wealth. In May 2020, the People’s Republic of China (PRC) adopted a new civil code, which embeds a recognition of “intellectual property rights” into the national core of Chinese civil legal relations and economic development goals (Articles 1 and 123, effective January 1, 2021).
In The Intellectual Property of Nations, I seek to encapsulate these ends of intellectual property law in our contemporary structures of globalized social power. The ends are described in the first and last chapters of the book, where I exemplify the operation of intellectual property law in McDonald’s franchising arrangements, in the legal foundations for Facebook, in the infrastructure for modern telecommunications, and in the so-called “smartphone wars”: the epic litigation between Apple and Samsung over smartphone-related intellectual property rights.
In one phase of the smartphone wars, in closing arguments made by Apple’s attorney to a jury in Silicon Valley, we see the social-psychological ends of intellectual property law poignantly revealed: the anxieties stoked by a quest for political and economic power. The tragic nature of the quest is revealed in the “techno-nationalist” fears exploited by Apple’s attorney — fears of national failure in a global competition.
When I was young, I used to watch television on televisions that were manufactured in the United States. Magnavox, Motorola, RCA. They were real companies. They were well known and they were famous. They were creators. They were inventors. They were like the Apple and Google today. But they didn’t protect their intellectual property. They couldn’t protect their ideas. And you all know the result. There are no American television manufacturers today.1Apple v. Samsung, 2014 WL 549324, 11 (N.D. Cal., February 7, 2014) (not reported in F. Supp. 2d).
The Beginnings of Intellectual Property Law: Roman and Biblical Legality in Christendom
At the core of ultra-modern intellectual property law, when viewed in a long-term historical perspective, is an ancient legal tradition involving letter-based legal instruments: charters and writs granting privileges and property, and at the same time issuing “executive” (imperial) orders. In England, these letter-based legal instruments developed into the direct ancestor of modern patents for invention: letters patent (open/public letters), differentiated from letters close (secret letters) by their sealing techniques.
The name for the historical discipline devoted to study of these ancient legal instruments, which developed along parallel lines across Europe (and beyond), is diplomatics, and it is worth remembering that diplomatic skills (enabling the recognition of forged legal instruments, such as the infamous Donation of Constantine) laid essential foundations for modern, “western” processes of state-formation, and particularly the institutional separation of church and state.
In telling the story of modern intellectual property law, I return to legal beginnings for the charters and writs that developed into modern patents. I find these legal beginnings in Hellenistic Rome, which borrowed, in turn, from earlier imperial traditions. Learning from contemporary scholars of medieval diplomas – Geoffrey Koziol, Rosamond McKitterick, and Alexander Murray, among many others – I focus on the social development of these “instruments of power,” from Roman foundations through to the heirs of Roman legal traditions in Carolingian Europe, and onward to the revival of Roman legal learning that spread from northern Italy to universities across Europe.
In returning to these Roman legal beginnings, I am in some ways challenging the consensus that intellectual property law is modern. Rather, I believe that a focus on the legal forms resting at the historical core of modern intellectual property law – letters patent and charters of privilege for guilds – helps us to recognize a much older set of legal traditions that underpin modern intellectual property law. The emphasis on novelty in modern intellectual property law is certainly new, but the legal forms are ancient, and by no means exclusively western. These legal forms involve letter-based privileges, granted to performatively demonstrate patronage and to enable social power through bonds of obligation.
Borrowing from Max Weber’s historically-attuned legal and economic sociology, I generalize from this basic insight by offering a stylized historical sketch for the development of intellectual property law in three basic layers: (1) from empirical formality in letter-based legal instruments (i.e. experiential formalities in proper sealing techniques and precise recitation of formulas), (2) from semantic (conceptual and logical) formality in classical Roman terminology for property acquisition, combined with Hellenistic forms of logic, which were transformed with Christianization into the elaborate world of late Roman imperial law, and (3) from substantive rationalities that justified exclusive privileges based on their social benefits.
Speaking metaphorically, I offer a narrative in which substantive rationalities emphasizing social benefits were woven together with semantic formalities of Roman law defining principles for property acquisition and transfer, and both grafted onto an ancient legal tradition of patrimonial privilege-granting, which was shared throughout the Mediterranean-centered world of antiquity.
Already in late Roman antiquity, as we see clearly from the letter collections of Cassiodorus and in Justinian’s Code, forms of learning and technical skill were privileged by imperial letters. In the letter collection of Pope Gregory I, where exclusive privileges were deployed quite systematically in the effort to build alliances with Frankish, English, and Spanish rulers, we see the beginnings of a new Christian voluntarism in the creation of ecclesiastical and monastic institutions. In Anglo-Saxon and Carolingian charter collections, late Roman legal traditions involving letter-based privileges were given narrative form in monastic cartularies, and an emphasis on the wonders of creativity (both human and divine) was carried forward from Hellenistic antiquity in a Christianized, Biblical form, through the Etymologies of Isidore.
The center of our modern legal institutions, including modern intellectual property, involves a set of legal traditions carried forward from medieval Europe, but ultimately from ancient Rome, which have been narratively synthesized with Biblical law in the institutional history of the western Christian church. Recent Christian scholarship on the relationship between law and religion, inspired by the work of Harold Berman, has richly expanded our awareness of this historical, developmental process. Max Weber’s developmental legal sociology also drew attention to the intertwining of law and religion in western history.
At the beginning of the Biblical story is, of course, the story of God’s creation, the divine poiesis that brought the cosmos into Being, an order out of chaos. And the heart of the Biblical story is the story of a nation, a people called by God to be a holy people, a people living in accordance with divine laws and divine promises — promises that include a proprietary share in homeland and community.
Our modern worship of creative novelty – a worship that the Romans decidedly did not share – became possible in a secularizing, Christian Europe, when an analogy was drawn, with attention to its legal implications, between human creators and the divine Creator. Just as God is the Lord (dominus) of his Creation, so human persons made in the divine image are lords of their creations, with lordship (dominium) evoking both rulership and ownership simultaneously. This argument was made explicitly to the Parlement of Paris during the French Wars of Religion.
The modern obsession with novelty, originality, and innovation, together with the legal privileging of these in explicit strategies for national power and wealth, I am suggesting, is a secular distortion of Biblical hopes, which became an institutionalized part of western legal traditions. In the repeated efforts to reform Christian religion, in western Europe, new beginnings became increasingly secular beginnings. And instruments of legal power were deployed in new ways, which increasingly privileged human creativity and technological novelty. This was a new development, the kernel of new substantive rationalities, built upon old legal forms, and on a fecund synthesis of Roman and Biblical law.
In this synthesis, I believe, an attitude of deferential respect toward legal obligations came to be cultivated within the Church, at the same time that legal institutions were being deployed with increasing intentionality to support the accumulation of wealth for purposes that were understood to be beneficent. By “legality,” I basically mean this attitude of deferential respect toward legal obligations, as it is performatively demonstrated in social action. This legality, for Max Weber, is a vital part of the ethos that continues to support modern, rational capitalism, even after the Protestant Christian commitments that originally cultivated it have withered away.
This combination of legal traditions carried forward from antiquity, Christian (and post-Christian) legality, and voluntarism in the creation of institutional structures of legal obligation for purposes of wealth-generation – these, I believe, are developments resting at the heart of modern intellectual property law and the modern nation-state system, which have developed together, fueling a drive for national wealth and power in technological innovation and artistic creativity, together with a proprietary claim in the conceptual identification of business organizations that serve as economic sources for an ever-expanding array of consumer products.
In my book, I endeavor to tell a sociologically-informed story about how this combination of legal traditions, Christian legality, and post-Christian voluntarism have supported the emergence and expansion of intellectual property into a world system. In so doing, I am more fundamentally trying to tell a story – a tragic story – about the modern nation-state system itself, and about the people (us) who have placed our hopes in it, which is to say, a story of our modern world (oikumene).
Conclusion: Biblical Tragedy and Christian Responsibility
One means of simplifying the story of intellectual property’s origins into a slogan is to say that, over the long sweep of European history, the royal prerogatives of European kings, queens, and emperors – rooted as these were in historical memories of Roman imperial power – were transformed into the property rights of national states and citizens.
This is revealed with particular clarity, I believe, through the logic of Lord Mansfield, in the great English case establishing intellectual property, as a new type of legal property under English common law: Millar v. Taylor (King’s Bench, 1769). What was once the property of the king became the property of the king’s subjects, a logic that F.W. Maitland recognized as being significant for a broad array of English rights.
For James Madison, architect of the “intellectual property clause” in Article I, Section 8, Clause 8 of the U.S. Constitution, the Millar case, as indirectly upheld by the House of Lords in Donaldson v. Becket (1774) was sufficient to affirm in Federalist No. 43 that:
The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.
With the ratification of the Constitution, the U.S. Congress has the power:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
With this constitutional empowerment to the legislature of a new national state, copyrights and patents are legitimated as formally-valid instruments of state power, and they are given an explicitly progressive purpose. As intellectual property has developed over the course of the nineteenth and twentieth centuries, it has become central to a progressive jurisprudence of the nation-state system, in which creativity and innovation are ultimate sources of national wealth and well-being, protected and coordinated through a globalized treaty framework.
Today, perhaps, that progressive vision is reaching its end (its telos) in computerized systems that have acquired the capacity to technically innovate. Whether or not this fantastic claim is true, it is certainly true that computers have taken over all aspects of our lives, and especially our social and political lives. That this has all been for the good of society is, to say the least, highly questionable.
Under such circumstances, what should we do?
I believe that those of us who claim to be Christians should reaffirm our humanistic commitments, drawing on the Christian story that English-speakers call the Gospel. This story of ultimate novelty is found in the life story of a human being, a Palestinian Jewish man named Joshua (Jesus), who died a criminal’s gruesome death in Roman-occupied Jerusalem, and whose resurrection to a position of ultimate power at God’s right hand is somehow a synecdoche and personification of ultimate possibilities for human “spiritual” (geistlich) life, a way of life rooted in an ultimately meaningful, covenantal relationship with God.
For Christians, in other words, the beginning and the end of our human stories are to be found in the life of Christ, but that incarnational life of ultimate humanity and divinity is a sacramental story, and this means a story full of symbolic meaning. The life story of Jesus, as we know it from the Christian Biblical texts, is full of signs, signs from what Jesus did and from his teachings. Those teachings and symbolic actions drew meaning from older Biblical traditions, the traditions of Biblical Israel, as these are edited together into a complex collection of legal instructions (Torah) surrounded by powerful stories, majestic poetry, and prophetic oracles.
The Biblical story, as personified in Jesus of Nazareth, is a story of God’s love for humanity, a love so deep and tragically beautiful that God, in Jesus, died for it. Christians proclaim that, in dying for this love of humanity, God affirmed his covenantal law and elevated it to a higher, spiritual plane, elevating human beings, at the same time, in spite of ourselves. Humanity has become something holy and sacred because God became human and dwelt among us. Those of us who affirm this are committed, I submit, to a radical, Biblically-rooted humanism.
Karl Barth has persuasively argued that distinction, not separation, is the best way to think about the relationship between church and state, between Christian community and civil community. Christians are, from this viewpoint, called to responsibly serve their civil communities, in many ways, through political action and legal obligation. Prominent among these ways of service is the affirmation and defense of humanistic commitments, in political action and legal obligation, with particular attention to those among us who are most vulnerable. When our legal institutions and systems forget their humanistic commitments, we have a responsibility to remind them. We can do this, in part, by drawing on a well-spring of Biblical literature and teachings, remembering together the stories of God’s ultimate solidarity with us, in our vulnerable humanity and death, a solidarity that points toward the astoundingly hopeful possibility of new life.
This is a salvation story that can put to shame all secular salvation stories, and particularly the crudely technological salvation stories with which we are presented today.
Human beings are not “meat machines,” but we are spirits in meaty flesh (sarx), as Paul repeatedly emphasized. God has somehow sacralized and elevated our meaty spirits in the story of Christ’s incarnation.
There are no reductive platitudes or certainties about what this means for Christian responsibility in politics, legal obligation, and society, including our attitudes toward modern legal institutions like intellectual property.
But our humanistic commitments must be basic and fundamental.
At a minimum, I think this means that we should draw upon much deeper conceptions of society, in evaluating legalistic claims about the social benefits that flow from innovation. In doing so, we will also have to confront the reality that strategies for intellectual property protection and national empowerment have been built into the global frameworks according to which modern nation-states cooperate and compete.
The salvation-logic embedded into the modern, nation-state system has borrowed heavily from Christianity, but it is not Christian. The dilemma, it would seem, is in discerning which parts of the system can be affirmed, in a spirit of genuinely Christian legality, mutual support, and love, without affirming the grotesque and horrifyingly inhuman ends toward which the system seems to be heading.
The way forward, I think, lies in cultivating the virtues of “holy envy,” seeking, in the globalized religious traditions that intertwine with law and legal institutions around the world, values and supports for responsible and peaceful legality that we can share and love together.
I take this to be a fundamental commitment of The Canopy Forum, and I am grateful for the opportunity to join the effort through this essay. ♦
“Legacies of the Sacred in Private Law: Roman Civic Religion, Property, and Contract” | International Conference at the Kate Hamburger Center for Advanced Study in the Humanities “Law as Culture”
“The Intellectual Property of Nations: How Critical Realism Can Inform Your Work” |Critical Realism Network
Law, Justice & Society: Thinking About Law at Bard College
Laura Ford is an Assistant Professor of Sociology at Bard College. With a background in both law and sociology, Laura’s research and teaching interests include: law & religion; economic sociology; social theory; the history and development of intellectual property; and historical sociology. Recent publications include articles in Qualitative Sociology; Max Weber Studies; Theory & Society; the Cardozo Public Law, Policy & Ethics Journal; and a chapter on “Law and Commercial Capitalism” for The Oxford Handbook of Max Weber. Forthcoming publications include: The Intellectual Property of Nations: Sociological and Historical Perspectives on a Modern Legal Institution (Cambridge, 2021); and a chapter on “Ancient Judaism and Western Legality” for the Routledge Handbook on Max Weber. Photo Credit to Prantik Mazumder.
Ford, Laura. “The Intellectual Property of Nations: Returning to Our Beginnings in Christian Legality.” Canopy Forum, February 12, 2021. https://canopyforum.org/2021/02/12/the-intellectual-property-of-nations-returning-to-our-beginnings-in-christian-legality/