How is intellectual property moral

Knowledge and property

Hannes Siegrist

To person

Hannes Siegrist, Prof. Dr., is historian and professor for modern European cultural and social history as well as director of the Institute for Cultural Studies at the University of Leipzig. Current research focuses on the social and cultural histories of professions, intellectual property, consumption and cultural politics in an international comparison (18th-20th centuries). Hannes Siegrist has been a member of the Saxon Academy of Sciences in Leipzig since 2007.

Cultural rights of action in the modern age

Ownership of knowledge is a relatively new concept. Only the figure of the "author", which emerged during the Enlightenment, justifies the thinking of knowledge and property and thus modern European copyright law.

Reconstruction of Gutenberg's letterpress machine from 1472: debates about reprinters and forgers began soon after the invention of letterpress printing and have continued into the present age of the Internet. (& copy picture-alliance / akg)

1 Introduction

The citizens of the knowledge society and media society are expected to adhere to the rules of intellectual property as producers, intermediaries and users of information, knowledge and forms of expression. However, in order to understand these rules and be able to judge them independently, one should also know where they come from. So far, however, the school has hardly gone into the history of intellectual property. Although the culture of modernity is essentially shaped by the idea and institution of intellectual property, the history of intellectual property does not belong either to the traditional educational canon or to basic knowledge of civilization. In the following, it will be illustrated using the example of author's rights and copyright, which are often grouped together with inventor rights or patent law, rights to brands and trademarks and rights to industrial forms (design) in categories such as intellectual property and intellectual property rights become.

The institution of intellectual property has been regulating the relationships between individuals, groups and cultural artefacts in modern secularized, free-market and liberal societies for a good two hundred years. Intellectual property refers to strong and exclusive rights of action, which establish the autonomy of the individual and the order of knowledge and society. In the present historical overview, however, we do not reduce the term and the institution of intellectual property to the legal, legal-dogmatic and legal-technical dimensions, but rather understand intellectual property as a bundle of social, cultural and legal rules of action and rights of action, whereby roles, relationships and forms of practice of the cultural and scientific field. Intellectual property - in conjunction with complementary and alternative institutions - regulates the dynamics and change in modern societies and cultures.



In contrast to material property rights, intellectual property rights have been limited in time since the dawn of modern society. After the protection period has expired, private and individual intellectual works become "in the public domain". This means that they are not only freely accessible, usable and transformable, but also approved for commercial use. From now on they belong to the public domain or to the common property (commons) of the nation and humanity. Dealing with intellectual works and cultural artefacts in the public domain is also regulated by national laws and international agreements.

Legislation and international conventions define and regulate both private intellectual property rights and collective cultural community rights and goods in the respective national and legal areas. The history of intellectual property in modern societies is therefore characterized by the search for a balance between individual and private rights of action on the one hand, and corporate and public rights of domination and action on the other. For around two hundred years, the nation-state has reserved the right to restrict private intellectual property rights on the basis of higher collective interests. It coordinates the rights and interests of its citizens and residents both internally and in international cooperation.

This historical essay deals with the social construction and use of intellectual property rights from the 16th to the 21st century and asks about the function and significance of copyrights in social, economic and cultural change.

2. The invention of intellectual property in Europe

The idea and institution of individual intellectual property developed between the late Middle Ages and the 19th century in Europe and has spread worldwide since the late 19th century. The breakthrough came in England, France and the USA in the late 18th and early 19th centuries, and in the rest of Europe and Latin America in the following decades. Approaches to the individualized production of information, knowledge and symbolic forms, to an individualistic intellectual copyright and ownership consciousness and to a free book, knowledge and art market beyond stately, ecclesiastical and class norms have been found since the 15th and 16th centuries . Until well into the 19th century, however, the free and individualized production, distribution and use of texts, images and sound works was still considerably hindered in many places. In the context of the great political, denominational and social conflicts, intellectual works and images were often seen as sources of danger for secular and spiritual rule.

In the class and autocratic society, the rights of rule and disposal over symbolic representations and forms of knowledge were assigned to secular and spiritual authorities, classes, professions and corporations. The relationship between rightholders, symbols and knowledge was regulated by terms and institutions such as "rule", "privilege", "monopoly", "profession" and "class". The individual was bound by the collective rules of his class or by the special rights granted by the prince. The use of knowledge and culture was regulated by the estates, the concept of national common goods was still poorly developed. The European and regional nobility handed down, designed and monitored the knowledge of rulership and administration. Clergy and churches controlled the religious and denominational knowledge and symbolization as well as their reproduction, distribution and use. The professions of the learned professions controlled the handling of theological, humanistic, medical and legal knowledge. Guilds and artists' guilds watched over the technical, industrial, handicraft and artistic professional knowledge, merchant guilds over the commercial knowledge. Exclusive rights of action were legitimized by religion, tradition and custom.

The right to develop, publish and commercially use new forms of expression, new knowledge and technical inventions was considered a privilege, that of emperors and popes, kings. Princes and free cities was awarded. In the course of the development of the territorial state society, the state intervened more and more in knowledge, culture and economic relations. He took responsibility for higher education and made the higher civil servants and professions the state-dependent knowledge and functional elite. For reasons of power politics, the mercantilist and absolutist state promoted economy, science and art by granting publishers and printers commercial and commercial privileges, setting up art academies, running universities and granting private directors a concession to run a theater. Within the framework of the cultural concession system, secular and ecclesiastical authorities granted the rights to produce, edit, distribute and use texts, images and performances in the form of precisely defined and limited trade and commerce monopolies. The privilege of authors was, however, the exception, there was no author and inventor right in the modern sense.

In many cases, the cultural and economic rights of action were expressly not transferred to the actual author or inventor, but to the person who was the first to disseminate and use a work, an idea, a manufacturing process and a form of expression in the national and legal territory. Printing and publishing privileges were then granted either to individual entrepreneurs or, as in Paris and London, to members of the capital's guild of printers and publishers. The owner of the reproduction rights had a monopoly on the exploitation of the book, but was also obliged within the framework of political and denominational censorship policy to distribute only good and harmless writings. In this way, the authorities privileged and disciplined a small group of publishers and printers who had the technical and commercial means and knowledge for the production and sale of printed matter and who ensured that professional conventions were adhered to.

However, the privileges were only legally binding and enforceable in the territory of the spiritual and political rulers who had granted the printing permission and the right of commercial use. Even there they were often disregarded, despite numerous checks by printers and publishers from the provinces and neighboring countries who produced or smuggled in "reprints". Scottish and Irish publishers reprinted for the English market. Publishers from the French provincial cities, the Netherlands and western Switzerland satisfied the demand on the politically, culturally and economically overregulated French market, which got out of control in the decades before the French Revolution, with the numerous reprints. In the northern and central German states complaints were made about reprinters from the southern German states and Austria until the 19th century, and in the northern and central Italian states about the reprinters from southern Italy. The problem of reprinting worsened because in Europe the state and legal areas often did not coincide with the language and cultural area and business-minded publishers and printers could only increase their circulation and income by opening up cross-border markets.

The debates about reprinters, forgers, smugglers and "pirates" (as the reprinters were called in the seafaring nation of England) stand at the beginning of the history of intellectual property and copyright. They started soon after the invention of the printing press and have continued into the present age of the Internet and globalization. In the 18th and early 19th centuries, printers, publishers and authors called for more legal security in the expanding communications and media market. In order to be able to better protect the material form of the book, the publishers and printers were ultimately even prepared to leave the rights to the immaterial form of expression and the content of the work to the author. The Statute of Anne of 1710 in England and the fundamental judgments formulated by the French royal court a good half century later made possible a case law that recognized the author as the legal author of the work and granted him the primary rights of reproduction and distribution of the work. In England and France, individual authors and their descendants made it clear for the first time with the help of lawyers in test cases against publishers and printers that they were claiming the property rights to the work.