Abstracted objects: the vernacular metaphysics of copyright law

Carvalho, Henrique Nuno Rebelo Melo De (2022) Abstracted objects: the vernacular metaphysics of copyright law. PhD thesis, Birkbeck, University of London.

Abstract

Abstraction is the basic operation through which intellectual property construes its objects. Each intellectual property regime has its own techniques to abstract intangible essences from the fungible bodies that are held to token them, hence justifying separate treatment. This thesis problematises abstraction in copyright law through a close reading of three seminal works in the history and theory of intellectual property. In the first part, in dialogue with A philosophy of intellectual property by Peter Drahos, the thesis explores ways of grappling with abstraction in classical metaphysics. In the second part, the thesis turns to techniques developed historically and by and large internally to intellectual property discourse — discussed in The making of intellectual property by Brad Sherman and Lionel Bently and Figures of invention by Alain Pottage and Brad Sherman — to suggest that the way in which copyright law has come to make the cut between the tangible and the intangible owes less to philosophical abstraction than to the way in which commodities appear already as vernacular abstractions. By pulling in opposite directions, the two parts of this thesis open the space for a critical intervention in intellectual property theory. ‘Ideas’, ‘forms’, or ‘concepts’ do not need to be deported to a separate world — the Platonic neverland from which various critiques of intellectual property have drawn their appeal — they work their magic in everyday practices. The emergence of intangible property in eighteenth century Britain happened against a backdrop of a severance between intellectual and manual labour both in the actual division of labour and in the discourses that were built upon it. This thesis argues for the recognition of the centrality of the division of labour — and the techniques through which it was executed — in the emergence of modern intellectual property law. And points in the direction of its continuing relevance in the contemporary operation of intellectual property regimes.

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