Band 17, Heft 2 - Focus: The Spectral Nature of Intellectual Property

The spectre of the machine and the mechanical jurisprudence that accompanies it have dominated patent law for over a century. This article offers three examples where we can see the influence of the figure of the machine in patent law: in the way the history of organic chemistry has been viewed, in the way that the law first interacted with biological inventions, and finally in the way that many commentators think about AI-machine generated inventions. I end by offering a different way of thinking about inventions that allows us to move beyond the spectre of the machine to give space for more speculative empirical inventions.

In 1985, Marianne Mele Hall, the chairman of the Copyright Royalty Tribunal, resigned after a controversy surrounding her role in writing Lawrence Hafstad’s book, Foundations of Sand (1982), which included several racist passages. Although at first she claimed to have been the co-author, when the scandal broke she tried to avoid the political controversy by describing her role as a ghost writer or an editor. While the effort was to no avail and she had to resign, it nevertheless prompted an interesting epistolary conversation between the information scientist, Eugene Garfield, and the sociologist of science, Robert K. Merton, about the differences between the two terms. This essay looks at that correspondence and situates it alongside the emergence of the information industry affecting copyright.

In this essay, I treat intellectual property claims as “impossible realities,” as these have recently been defined by Susan Coutin and Barbara Yngvesson. Drawing from their joint legal ethnography of migration, deportation, and transnational adoption, I extend their observations about the routine mismatch between personal history, physical location, and legal description in order to understand the shifting value of design objects under various regimes of law and heritage. I trace how legal claims, aesthetic judgments, and historical understandings combine and conflict to create the contemporary value of furniture produced in the 1950s and 60s for the Indian modernist city of Chandigarh, and explore further shifts of value as the furniture circulates in a global market for what might be called “modernist antiquities,” and is potentially subject (in Europe) to copyright and trademark claims by the descendants of the designer Pierre Jeanneret. Further, a recent film by the artist Amie Siegel (American, b. 1974) explores the provenance and value of this furniture and provides a novel means of analyzing these shifts. Siegel has put her film up for sale at the same kind of auction where this furniture is sold, offering a reflexive critique of the paradoxes and (legal) impossibilities created by the relocation, restoration, and revaluation of this furniture. The history of the Chandigarh furniture and Siegel’s film together provide an avenue of commentary on the categories of IP, emerging subjects of regulation (like design copyrights), and the fraught relation of IP claims to both capitalist and postcolonial histories that make objects (and persons) bear different values in different locations.

In 2003 the highly profitable transnational commercial yoga community was unsettled when the controversial Los Angeles-based yogi, Bikram Choudhury, launched a barrage of legal actions against fellow hot yoga teachers. At the heart of these disputes were Bikram’s copyright and trade mark claims to a popular yoga choreography performed in a heated room. These disputes quickly attracted attention from an array of stakeholders including Indian civil society, governmental figures, spiritual ascetics, and open source advocates who presumed that such proprietary claims were not only novel, but also preposterous and inherently at odds with yogic values. This article seeks to interrogate this presumption and, in doing so, trace a longer history through which transnational yogic flows have always-already been haunted by notions of spiritual and economic exchange. Moreover, while the Bikram disputes may have brought proprietary claims in yoga to public attention, this article will demonstrate two things. Firstly, that intellectual property claims of various kinds have been applied to expressions of the practice in the United States since at least 1895. Secondly, despite more than 15 years of active litigation involving Bikram’s claims, certain aspects of the intellectual property issues surrounding his hot yoga practice remain unsettled. In tracing the historical roots of yoga-as-property , the article illustrates how popular understandings and legal logics move in and out of sync with one another and that proprietary claims, once introduced, become virtually inescapable – a spectral presence that continues to trouble the practice as it moves forward into the future.

After the October Revolution in 1917, the legal protection for inventions in the Soviet Union underwent a series of transformations. One of the key changes was the emergence of the “inventor’s certificate” as a socialist alternative to patents, whereby inventions were declared to be state property, but inventors were entitled to recognition and compensation. Patents were generally available in parallel to inventor’s certificates, but the latter remained the preferred mechanism for encouraging the worker-inventor and mass inventing activity, as well as promoting the free flow of information that capitalist patent systems had failed to achieve. However, as the Soviet Union started to pursue membership of the Paris Convention for the Protection of Industrial Property , several socialist countries sought to amend the treaty to recognise their inventor’s certificates as equivalent to patents. This sparked a debate amongst Paris Union members, during which the socialist countries portrayed the inventor’s certificate in a manner analogous to Schrödinger’s cat: it simultaneously was and wasn’t a patent. While the debate was never fully resolved by the Paris Union members, this article revisits the history and international debates about the Soviet protection of inventions to consider what the uncertainty about the inventor’s certificate might reveal about the circulation of technical information and the nature of global intellectual property law.

This article examines disputes surrounding the ownership and appropriation of the name “Quaker” in American enterprise in the late nineteenth and early twentieth century. I focus specifically on efforts by the Society of Friends – colloquially known as the Quakers – to prohibit the use of the name of any religious church, denomination, society, or association in commerce, thereby rendering religious trademarks unregistrable. By exploring disputes around the Quaker name, I argue that the Society of Friends strategically appropriated terminology provided by trademark law (product origin, goodwill, distinctiveness) to claim ownership in the Quaker name while simultaneously arguing that religious names were sacred and thus could not be owned as a form of intellectual property. This historical debate provides insights to crucial questions about the spectral operation of trademark law in the United States. For instance, how are the taxonomies and logics of trademark law ‘possessed’ or spectrally animated by other pre-existing cultural/theological dimensions of ownership? Conversely, how does trademark law then reconstitute pre-existing logics around naming within religious organizations, for instance by providing new frames (the name as defense for consumer confusion or as guarantor of divine source) for understanding American religious practice?

Plant variety rights, a somewhat obscure and technical form of intellectual property, are often assumed to be conceptually uncomplicated. The two essential purposes of plant variety rights laws are typically to incentivise the creation of novel varieties with useful characteristics and to reward breeders for these efforts. These rationales are seldom questioned. However, plant variety rights regimes might be better understood as open-ended, containing multiple potential futures that are innate though they may never be fully realised. This article reviews a series of Parliamentary debates over the three generations of plant variety rights legislation in Aotearoa New Zealand. The article shows that over time, rather than remain static the perceived rationale for recognising intellectual property for plants in New Zealand has shifted and expanded. Justifications have grown from a narrow focus on supporting a nascent, export-oriented horticultural industry to the endorsement of a broad platform that aims both to promote domestic agricultural innovation and to achieve Indigenous sovereignty over culturally significant plants. The prior indeterminacy that characterises plant variety rights legislation in Aotearoa invokes the metaphor of Schrödinger’s cat, in that these laws’ multiple futures are contingent and may resolve themselves differently depending on whose aspirations are formally recognised and applied in practice. The nature of plant variety rights is therefore spectral, pervaded – both implicitly and sometimes overtly – by the ambitions of different people, as well as by the types of plants and ways of knowing that these laws exclude.

The role of intellectual property in biomedical innovation is often construed by the source of its funding viz. public or private. While privately funded innovations are assumed to rely on intellectual property for monopolistic expansions and profit gains, publicly funded research is expected to serve the broader social good without proprietary constraints. In the light of the accumulating evidence over the last few decades, it is now understood that this causal narrative, appears simplistic. To gain a deeper understanding of innovation, whether profit-driven or socially oriented, it is crucial to examine the broader context of basic and translational research. This article investigates the management of intellectual property within two significant biomedical research funding organizations: the publicly funded United States National Institutes of Health (NIH) and the public-private-philanthropic partnership, the Coalition for Epidemic Preparedness Innovations (CEPI). The findings reveal that despite different claims about intellectual property strategies, these institutions exhibit similar practices influenced by the spectre of larger privatisation processes intrinsic to global market forces. This analysis suggests that a singular logic of one-size-fits-all approach to intellectual property is inadequate in promoting biomedical innovation for the greater public good.

This article weaves together the intricate realms of authorship and scientific capital within the context of the Tumor Bank at Mexico’s National Institute of Cancerology (INCan). As intellectual property paradigms continue to evolve, the notion of authorship emerges as an intriguing avenue for the dissemination of knowledge. This study employs ethnographic methods to investigate the multifaceted conflicts involving the ownership of biological samples, the authorship of research outputs, and scientific capital. In the context of INCan’s research setting, the discrepancies in sample distribution serve as a symbolic reflection of the scientific capital and influence exercised by researchers. In doing so, interviews with INCan researchers illuminate how intricate collegial and personal relationships and alliances are navigated in order to secure coveted samples. Within this intricate interplay, credibility and power dynamics intertwine, crafting a tapestry of considerable complexity shaping the nuanced dynamics of authorship within the academic sphere.

The challenging concept of legal person has evolved significantly over the centuries, rooted in the ancient Roman notion of persona as a mask or character that conferred different legal and social roles on individuals (as well super-human entities). In modern times, the concept of legal person seems even to expand beyond the human sphere to encompass a wide range of entities, including animals, artificial intelligence (AI) and the environment. This article explores the complexities and dilemmas surrounding this evolving concept, and examines the challenges and opportunities presented by the extension of the legal persona to new frontiers.

Black Sails is an historical drama written as a prequel to Treasure Island . It did this by weaving the history surrounding the Pirate Republic of New Providence Island around fiction to create a compelling narrative exploring the force and evils of law and empire, and the lengths that some will go to in order to resist and be free. This paper will examine Black Sails as a social discourse text in order to critique the impact and tyranny, yet inevitability, of the law, and how soft power is feminised but requires queerness to be effective.