Although we live in the era of the resurgence of piracy against monopoly – the latter in the form of IP claims – we don’t entirely realize what the modern enclosure movement is all about, or how tangled is its history.
Intellectual property was recognized, as every history recounts, first in Venice in the 15th century. But the more interesting arguments about intellectual property begin in the 18th century. It was at this time that we see two different trends: one trend was towards breaking up guilds and destroying the power of “craft secrets” –and the other was towards rewarding authors rights on the products of their “mental labor.”
England, which made the leap into industrial capitalism in the eighteenth century, has gained the most attention from historians of intellectual property. However, France also had laws pertaining to licensing invention. These notions culminated in
Le Chapelier's report to the Convention in 1791 urging a law to assure the right in property of an author to his work. This property was not just another property, like a horse, a slave in Santo Domingo, or a house: the “fruit of the thought of a writer” was “the most sacred, the most legitimate, the most unattackable, and if one may say so, the most personal of all properties.” These accolades are heavy as the marble laurel wreath crowns on the head of a bust. They seem strange. How can the most personal of properties even exist as a property – that is, as an exchange value?
Le Chapelier's report was preceded by a long line of enquiry among the philosophes. In particular, by Diderot.
Diderot, was one of the first great advocates of the author’s property in his work in France. But, as Liliane Hilaire-Perez (2002), who works on intellectual property history, has pointed out, Diderot distinguished between the very personal property of the author from what he took to be the craft secrets of mechanical invention – the latter of which were dubious properties. In his History and Secret of Wax Painting, an extended case study of a contemporary invention, Diderot wrote:
“Nothing is more contrary to intellectual progress than mystery. We would still be at trying to understand the simplest and most important arts if those who discovered them made them secret. Far from us, thus, that spirit of interest or pride which seems to conspire with the natural imbecility of man and the briefness of his life to perpetuate his ignorance…”
Mystery, here, really means mystification.
“The main issue for Diderot was to explain that technical invention relied on a method, an ‘art’, which was not actually the case in artistic creativity; the crucial point was the understanding of the concepts of cumulation and imitation in the process of invention.” (2002)
Diderot wrote his history of wax painting against the background of the French monarchy’s practice of encouraging invention by awarding brevet to those inventions thought worthy by the state. This entailed some kind of state reward and a right to demand compensation from users of the invention. The point of the system, which was devised under Colbert, was to encourage the arts. This, in fact, was also used as a justification for the monopoly system of patenting in the Anglosphere. In a sense, both justifications were responding to Diderot’s distinction between, as Hilaire-Perez puts it, genius and method.
This distinction may seem rather self-interested: Diderot as a writer is, in a sense, part of the guild. On the other hand, it does make some conceptual sense, within the conceptual scheme that brings together definition, property, invention and discovery. Tumblers in - I will boldly say - all the locks of the modern.
We can think of this distinction through the lens of one of Borges’ most famous stories, Pierre Menard: the author of Don Quixote. In this story, Pierre Menard, a French symbolist, decides to write the Don Quixote as a new work. He doesn’t mean by this that he will borrow Cervantes’ stories, or characters: he means by this that he will reinvent Don Quixote word for word, and thus make is a twentieth century work. Obviously, Pierre Menard’s word for word ‘writing’ of Don Quixote is, on one level, simply copying the text. But Borges’ narrator emphasizes that Menard did not simply copy – he also wrote drafts leading up to his copy, just as though he were writing the book himself. And, in a final turn of the modernist screw, he destroyed those drafts, because he wanted the work to be pure of the author’s presence – which was also part of writing the Don Quixote as a modernist text, one that shows the influence of the Flaubertian aesthetic of impersonality.
That, eventually, at some point, in order to write the Don Quixote in the twentieth century, Menard had to copy Cervante’s text, is part of the Borges’ joke. There would be no paradox, however, if we turned from writing a novel to, for instance, inventing the process for vulcanizing rubber. In fact, in 1852, Charles Goodyear took Horace Day to court on patent infringement because Day was using vulcanized rubber. Goodyear’s case was argued by Daniel Webster. Goodyear hadn’t made much on his rubber, and it was reported that he wanted a seven year extension on his patent, which was running out – so he may have intentionally been looking around for a case. Choate, Day’s lawyer, “marshaled convincing testimony from rubber factory employees that vulcanization was in common use in the early 1840s” (Handbook of American Business History). In fact, Goodyear had already paid Nathaniel Hayward for the idea – or rather, the patent rights - of adding sulfur to rubber. But it was, according to Goodyear, not method but accident that made the difference in the vulcanizing process. Goodyear mixed sulfur with rubber and accidentally dropped the rubber on a hot pan. He took the rubber out of the pan and left it to cool, and found that it became much more durable – just what he was looking for.
However, there is another part of this famous story that is not usually included in canonical American accounts: Goodyear’s patent included lead as an ingredient in the vulcanization process. This proved to be a point against him in England.
There, Goodyear came up against Thomas Hancock, who had already ‘invented’ impermeable clothing – waterproof cloth. Hancock got a sample of vulcanized rubber. He was able to analyse it and reproduce the process – and subsequently patented it himself. In a report of a “jury” of scientists in England for the Great Exhibition of 185 – the Crystal Palace – which examined the dispute between Hancock and Goodyear, both parties were credited with working out the vulcanization process. While the jury conceded that Goodyear had produced vulcanized rubber before Hancock, it also noted that Hancock knew nothing of Goodyear’s process. Rather, he discovered for himself the crucial determinant of heating the rubber. More than that, unlike Goodyear, Hancock understood what he was doing: that is, he understood what caused vulcanization. “Whatever may be the share of merit assigned to Mr. Goodyear and to Mr. Hancock in this important invention, the latter has not the less exclusive merit of having discovered that sulphur was the sole cause of the vulcanization process. On seeing Mr. Charles Goodyear introducing the different salts of lead into the specification of the patent that he subsequently took out, it is felt that he regarded their intervention as indispensable, while it is now demonstrated that sulphur alone is sufficient.”
Between Thomas Hancock and Pierre Menard there is a superficial similarity: both reproduced a product of invention. But Pierre Menard’s story is a paradox precisely because the invention of the Don Quixote by Cervantes is not just of the ideas, or the process, of making Don Quixote, but of the entire work – a work which wears its process, so to speak, on its face. Whereas the vulcanization of rubber is not an invention of Goodyear’s imagination. It is, rather, the encounter of different materials pre-existing in nature. Hancock’s work was comparatively simple – a matter of chemical analysis – whereas Menard’s work is impossible – he cannot so analyse Don Quixote so as to repeat it. He can only, eventually, in spite of everything, copy it.