Birnhack on Colonial Intellectual Property @Birnhack @TAU_Law

Michael Birnhack, Tel Aviv University, Buchmann Faculty of Law, is publishing Colonial Intellectual Property in Handbook on Intellectual Property Research (Irene Calboli, and Maria Lilla' Montagnani, eds., Oxford University Pres, 2019). Here is the abstract.

Most of the literature on Intellectual property (IP) legal history focuses on Western IP norms and ideas, especially British, American, and former British colonies. This chapter, to be published in the OUP Handbook on IP Research, adds some critical questions, in the context of imperialism and colonialism, namely, a post-colonial view of IP in a colonial context. As the Empires of the late 19th century and early 20th century, especially the British Empire, extended their global reach, they applied their own IP law in the new territories they controlled. They did so first and foremost for their own benefit. The imposition of a foreign, external law onto a local population, might have resulted in conflicts. Thus far, most IP history was told from the colonizers’ perspective. The paper argues for the inclusion of the colonized perspective, and offers a conceptual research framework. Colonial IP lies at the intersection of (1) a critical approach to legal transplants that views it as a process and interaction of foreign law and local laws and norms; (2) applied in a colonial setting; and (3) taking into account IP’s unique features. This framework provides an organizing structure for the study of IP history in a colonial context. It offers a critical stance that is aware of the multiplicity of voices, and builds on lessons from the study of law and society about gaps between the law in the books and the law in practice, about the social construction of the law, and the powers at stake. It enables us to be skeptical of the official history, which was typically told or mediated by the colonizers. This is a post-colonial approach to IP. The chapter begins with the separate ingredients of the proposed framework, and then integrates them together and discussed its challenges and pitfalls. Along the discussion, I bring some examples, mostly from on copyright and trademark law in Mandate Palestine (1922-1948).

Download the article from SSRN at the link.