Have we inadvertently built an intellectual property (IP) world order where IP is the optimal enabling tool for converting human knowledge into property; and by doing so, have we deliberately built an order which enables IP owners to extract and valorize humanity’s knowledge to its own detriment? Let us employ a synoptic approach in order to interrogate these questions.

The historical motivations underpinning the current nature of ‘intellectual property’ is not straightforward, as IP norms originated within different timelines, economies and societies. Early printing and trade privileges reflected a range of motivations to satisfy individual, societal, communitarian, State and market needs. Take for example 17th century England: patents were rejected as undermining the principle of ensuring protected labour for the welfare of the state; the first modern statute in the world on patents – the 1624 Statute of Monopolies – juxtaposed rights against the competing public interests of state welfare and regulated competition; and equity courts assumed notions of dignity to be inherent in certain types of knowledge-producing activities. The Venetian printing privileges were underpinned with the Christian ethos of encouragement of learning and dissemination; while 16th century Vatican and bishopric printing privileges displayed a diversity of justifications: protecting investments (in the labour and expense in producing work), incentivization and reward (to enhance the likelihood of the creation of future beneficial works), fair competition (forbidding unjust enrichment of another’s fruits), and proto-trademark rights to use the Papal or Bishopric coat of arms as designating the origin of the book, and ensuring the dissemination of accurate religious knowledge. These Western-derived rules are not the only exemplars of early IP norms. Scholarship has revealed prototype-IP rules: in 4 BCE Mesopotamia in relation to commodity marks and terroir; during the Han (206 BC–220 CE) and Ming (1368–1644) dynasties in China in relation to early trademark and copyright regulations; and in the golden age of Islam in relation to property, custodianship, and reward for intellectual labour. Many of these societies treated the moral interests of knowledge-creators, the economic concerns of investors, and the wider societal benefits as complementary values, to be balanced between duties and entitlements.

The displacement of equitable and ‘welfare enhancing’ justifications occurred during the 18th and 19th centuries when the double notions of ‘property’ and ‘mental labour’ were deployed to forge a common link between different forms of intellectual activities and know-how, and to subsequently transform them into ownership objects. The first international IP laws – the Paris and Berne Conventions – absorbed the then dominant European positions on the nature and ambit of intangible property, ambiguous as they were. These international laws expanded to encompass and repurpose anything embedded with a scintilla of human knowledge into different types of value-laden IP assets including natural phenomena such as scientific, medical principles and discoveries, and geographic culture such as terroir in regulating beer and wine in Germany and France. By the 1930s, the Conventions extended to include industrial, agricultural, and cultural extractive outputs (including grain, cattle, tobacco leaf, flour, films, photographs and radio broadcasts).

As all sorts of labour and objects became qualified as tradeable commodities, the typology and legal lexicon of IP law burgeoned, with Procrustean solutions being adopted in order to accommodate the expanding notion of ‘IP’. By the end of the 20th century, we have two dominant justificatory approaches. The first justification relies on economic maxims of non-rivalry/excludability, public goods, and market failure to justify state intervention in the form of property rights. The second justificatory approach is that the law should ensure reward and attribution for those who contribute to general prosperity. This aligns with the goals of fairness and agency which are embedded within the customs and laws of most societies and nations – this rights-based approach is enshrined in international bills of rights, for example, Art. 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights, and Art. 27 of the Universal Declaration of Human Rights), in Art. 17(2) of the EU Charter of Fundamental Freedoms, and in national constitutions such as Art. 1.8.8 of the US Constitution). Yet, by the 2020s, the structure of the global IP order as incorporated in the WTO-TRIPS Agreement has been implicated in the lack of essential medicines, equipment and diagnostics needed to combat diseases and pandemics. A similar challenge has been raised in respect of rising levels of food insecurity – that the rules allowing the patenting of seeds, fuel and pesticides should be reconsidered in the same way as the public health crises. In addition, we witness the dominance of certain firms in technological, agricultural, educational and pharmaceutical sectors due to the automatic territorial extension of international conventions to almost three-quarters of our planet.

The first dilemma lies with the concept of ‘property’. Despite criticism, the property route has been signalled as the just and efficient response to the need of authors, inventors, investors and the State to capture value from those who use and exploit IP goods, and that countries benefit economically, politically and societally from upholding a globally recognised IP regime. With the continuous wave of new technologies, the logical amplification of the ‘property’ concept results in new properties whenever technologies change, or when new derivative versions of existing subject-matter materialise. Can we deny our concern as to the concentration of ownership of knowledge resources such as scientific publishing or CRISP-R gene editing, generative AI, the Metaverse, and environmentally-sound green technologies? Or the studies which map the – sometimes nefarious – behaviour of dominant firms in the pharmaceutical, bio-agricultural, and scientific publishing fields in terms of their ability to control pricing and access through contractual and property laws? If such behaviours have a deleterious impact on the lives and rights of citizens, surely we can shift our narratives and declare that IP systems are theoretically subject to rights-based discourses under environmental and human rights laws. By extension, farmers have rights to repair their machinery or to their knowledge resources as captured in harvested seeds. Why is this controversial?

The second dilemma is in relation to agency ‒ the benefits of IP bypass vulnerable human authors/producers. Litigation is unfolding worldwide with attempts to recognise AI machines as authors and inventors, and the astute deployment of contractual licences maintains a bargaining disparity between IP-rich firms and more vulnerable communities such as consumers, creative workers, women, local and indigenous groups. This is not a ‘developing-country’ problem. For instance, common law uses the medieval master-servant axiom and subverts the ‘author’ rule to vest IP rights automatically in corporate employers. Compensation is not guaranteed either, due to the master-servant ethos permeating through most common law IP systems, and even where compensation is statutorily possible as in the case of employee-inventors, this can be narrowly interpreted. Or take the recent 2024 UK House of Commons report on how copyright contracts do not ensure proper credits or fair royalty distribution to women and non-binary people in the UK.

I would argue that a dystopian future is not inevitable if we rewrite the theoretical narratives through which we recognise, interpret, and enforce international rules and norms.

First, how viable is a holistic global IP framework in light of the complex array of norms advocated by different UN-based organisations? While WIPO was the sole arbiter of substantive IP rules in the international scene up until the 1970s, we now have the WTO (global, multilateral trade-related IP); the COP under the Nagoya Protocol/CBD (access to and benefit sharing of IP, indigenous knowledge, plant and genetic resources); UNHRC and ILO (empowerment of the ‘creative labourer’ or recognition of the human rights of the creator); UNESCO and the FAO (alternative non-property, public policy and heritage-of-mankind values in intangible culture and plant and genetic resources); the WHO (which prioritises health concerns over patents and trade marks); and finally UNCLOS under the BBNJ Treaty 2023 (a new global norm on benefit-sharing from ‘use’ of marine genetic resources and digital sequences).

Second, give agency back to vulnerable creative communities. Can collective bargaining contracts be the solution to reintegrate absent communities back into the IP system in terms of attribution and compensation? Can collective bargaining institutions act as a guardian of workers’ and knowledge-producers’ rights? Is there a public interest case even to use contracts to readjust norms to allow inter-generational access to and sharing of accumulated human knowledge, especially within certain communities? Europe can do more to export national collective management systems, while the US could do more to export its union-based collective bargaining schemes. There are two heartening examples. Take the 2023 SAG-AFTRA strike in the US. This was in response to the perception that the livelihoods of creative workers (i.e. humans) were being jeopardized by the substitution with AI-created writing, images, voices, and ‘synthetic performers’ in the film and video games industries. To guard workers’ rights, the unions demanded the recognition of ‘core’ rights within contracts between its members and the film industry – namely, prior consent and equitable compensation. Secondly, a historic and more inclusive international treaty was born in May 2024 – recognising the agency of indigenous and local peoples in relation to IP in traditional knowledge and associated genetic resources.

Finally, we need to recognise that the current global IP system is a palimpsest, an overlay of diverse imperial and colonising narratives and justifications with origins in medieval practices. We can rewrite it – nothing is set in stone. We need a reformed narrative of what, why and to whom national and international IP laws extend, recognising that these laws extend to human knowledge – it is the totality of humanity over time and space. Such an all-encompassing notion (human knowledge) can be regulated within IP law but only within very strict parameters which must incorporate a holistic perspective due to the enormity of the concept of human knowledge. We do have to stop being satisfied with purely utilitarian reasonings and with weak notions of ‘reward’ or ‘incentivisation’.

Most importantly, we should explore ‘IP’ beyond the legal discipline. Where the rules support societal and equitable values, especially in matters of vital importance to humanity, then we as IP jurists need to cross over to sociological, anthropological and cultural studies a bit more often. Keeping within disciplinary boundaries may prevent us from finding better approaches. Knowledge has no boundaries in terms of nations, cultures, economies and geographies.

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