The Age of Intellectual Property?
posted by Lea Shaver
It’s become a truism in IP scholarship to introduce a discussion by acknowledging the remarkable recent rise in popular, scholarly, and political interest in our field. Thus readers will recognize a familiar sentiment in the opening line of Amy Kapczynski and Gaëlle Krikorian’s new book:
A decade or two ago, the words “intellectual property” were rarely heard in polite company, much less in street demonstrations or on college campuses. Today, this once technical concept has become a conceptual battlefield.
Only recently, however, has it become possible to put this anecdotal consensus to empirical test.
In December 2010, Google launched ngrams, a simple tool for searching its vast repository of digitized books and charting the frequency of specific terms over time. (It controls for the fact that there are many more books being published today.)
If you haven’t already played around with this tool to explore your own topics of interest, you should. While you’re at it, take a stab at explaining why writing on the Supreme Court rose steadily until approximately 1935 and has dropped just as steadily ever since!
Back to our topic, though. What does this data reveal about the prominence of intellectual property in published discourse?
I generated two graphs, both charting the terms “intellectual property,” “copyright,” “patent,” and “trademark.” First, the longview:
Since 1800, patents have been a far more popular topic of conversation and study than trademark and copyright law. Perhaps not surprisingly, given the persistent popular interest in science and invention.
References to patents peaked quite dramatically in 1890. (The exact date can be pinpointed if you remove smoothing from the graph, visit here to manipulate it yourself.) This pique/peak of interest coincides with the founding of General Electric (based on Thomas Edison’s lightbulb patents), the passage of the Sherman Antitrust Act, and the 100th anniversary of the first US patent statute.
For much of these two centuries, reference to “intellectual property” – the conceptual grouping of patents, trademarks, and copyrights taken so much for granted today – was virtually nonexistent. That really changes only in the past few decades. Here’s the view since 1960:
A few changes stand out over these five decades. Patents finally lose their position of prominence as the American public takes increasing interest in copyright. Not surprisingly, this coincides with the emergence of the Internet.
The more dramatic shift, however, is the change in fortunes of the term “intellectual property.” What we’re seeing here is the invention of a new concept. People had long written about patents, copyrights, and trademarks. But the idea of “intellectual property” was a new one.
One of its earliest appearances is a 1967 Ayn Rand piece (Alan Greenspan is listed as an editor). Rand sought to dispel the traditional conception of patents and copyrights as privileges granted by the government, positioning them instead as quintessential examples of property.
The remarkable success of this idea – in culture and in the law – is self-evident today.
Compared to the last 200 years, the last fifty reveal the dramatically increasing importance of copyright and trademark in public conversation. (If the public is perhaps less interested in patents today than a century ago, interest in securing them certainly continues to rise.)
Even more important than the rising importance of these individual legal terms, a new concept has emerged that underlies their moral justification, empirical study, and legal regulation. That change is what defines the Age of IP.
This idea not only opens the conversation in Kapczynski and Krikorian’s book, but underlies the very concept of the project, as underscored by the title.
The editors and contributors refuse the historically naive view that would take the concept of “intellectual property” as a given. Instead, the contributions situate IP historically, as a contested concept that various social movements seek to destabilize.
One last graph. This one uses the rising use of “intellectual property” since 1960 as a baseline to plot increasing interest in the terminology of the A2K movement: words like “public domain,” “open access,” “fair use,” and of course, “access to knowledge.”
One way to interpret this graph is as suggesting that the term “access to knowledge” (the royal blue line) is today where the term “intellectual property” (the sky blue line) was in 1975.
Unfortunately, Google’s ngram only makes available data up to 2008. Kapczynski and Krikorian’s Access to Knowledge in the Age of Intellectual Property doesn’t yet show up on this chart. You can download the full text for free, however, from Zone Books and MIT Press.
(Also missing from the chart is Access to Knowledge in Egypt, published in 2010, thanks to Bloomsbury Academic and my incredible coeditor Nagla Rizk. “Mabrouk!” Nagla, on rejoining the Internet today. I’ll keep following your updates on the Egyptian revolution via Twitter.)