10 - Closure and its consequences

Summary

While the changes which led to intangible property being presented as a unitary, closed object, and the related displacement of mental labour, can be seen as a further stage in the reification of creativity which had long been a feature of intellectual property law and, if you like, a shift from natural law to positive law, it would be a mistake to see them solely in these terms: the shift from action to thing or from labour to work that came with the closure of intangible property in the second half of the nineteenth century marked an important change in the logic of intellectual property law.

The closure of the subject matter of intellectual property law brought with it a shift away from what had been called the metaphysics, or what we would now call the doctrine, of intellectual property law towards questions of political economy and policy. The move from creation to product also had a profound effect on what we described earlier as the creative or mimetic faculty of law. While we return to this in more detail later, it is enough to note here that the closure of intangible property played an important role in the (apparent) disappearance of creativity from intellectual property law.

The changing nature of intangible property also impacted on the categories of intellectual property law. On one level, the changes served to reopen the boundary between patents and utility models (or nonornamental designs): previously the willingness of the law to pass judgment as to the inherent nature of an invention or a mechanical device meant that the law had a standpoint from which it could decide what properly belonged in patent law and what did not. In so doing, it provided a useful way of managing the boundary between the two categories. With the shift away from what were expressly regarded as qualitative decisions, the policing role that they played was also lost.

The shift away from mental labour also impacted on the way the categories were explained. While designs, patents and copyright had previously been distinguished in terms of the quantity and later the quality of the labour embodied in the work in question, with the disappearance of mental labour from the law's horizon this was no longer possible.