The alternative is to adopt a practice of including indigenous narratives, a critical approach to historical legal disparities

Lawyers tend to focus on current law, and at most, search for the immediate legislative history of a specific rule, to support a certain interpretation thereof. Legal historians take a broader view, study past events and search for grand ideas within and outside the law, as well as practices that can teach us about what happened, how, and why. With such knowledge, we can better understand legal processes or the reasons for a rule that otherwise might seem obscure; we can consider a theoretical angle that has escaped us or assess the advantages and disadvantages of legal approaches.1

Building on earlier studies,2 innovative at their time, in recent decades intellectual property (IP) scholars have rediscovered legal history.3 Most of this new literature focuses on Western IP norms and ideas, especially British, American,4and former British colonies.5 More recently, we enjoy new studies about IP in other countries.6 In this chapter, I wish to add some critical questions, in the context of imperialism and colonialism, namely, a post-colonial view of IP in a colonial context.

Over the past twenty-five years, we have witnessed a wave of IP globalization, especially since the shift from the World Intellectual Property Organization (WIPO) to the World Trade Organization (WTO).7 But there was a previous wave of IP globalization, carried out by the Empires of the late nineteenth century and early twentieth century, especially the British Empire. As the empires extended their global reach, they applied their own IP law in the new territories they controlled, and make no mistake, they did so first and foremost for their own benefit. The imposition of a foreign, external law onto a local population, especially in the fields of culture and technology—namely copyrights and patents—might have resulted in conflicts. IP plays an important role in identity politics,8 and when located in a colonial setting, the local author could have, for example, a national identity, i.e. the author who feels and acts on behalf of a collective cause.9 Thus far, most IP history was told from the colonizers’ perspective. The colonized perspective should be included, and be part of the discussion.10 Indeed, in recent years we see more studies told from the colonized perspective, and although most of these studies focus on self-governing dominions,11 we see additional studies emerge in recent years.12

How should we study colonial IP law? I offer a conceptual framework, which has guided me in my own research in the study of copyright in Mandate Palestine.13Colonial IP, as a research topic and a methodology, 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 begins with a broad zoom-out view and zooms-in; it poses research questions, draws our attention to general characteristics, and to particular features of a specific topic. The proposed framework offers a critical stance that is aware of the multiplicity of voices, 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. In particular, this framework enables us to be sceptical of the official history, which was typically told or mediated by the colonizers. This is instrumental Cartesian scepticism—it is meant to raise doubt to push us to dig deeper and search for the best explanations we can find. Such an approach makes room also for the other side of the story, that of the colonized. This is a post-colonial approach to IP.14

This chapter begins with the separate ingredients of the proposed framework, and then integrates them together to discuss its challenges and pitfalls. Along the discussion, I will bring some examples, mostly from my own research on copyright and trademark law in Mandate Palestine (1922–1948). Although a Mandate is not a colony and relatively late in the British Empire’s global reach, British IP policy in Palestine was similar to those of other colonies; however, in each territory, the local conditions differed. IP was Imperial, but its reception was local.

III. The Colonial ContextThe colonial setting is a particular case of legal transplants. Scholars pointed, albeit in passing, to the connection between transplanting and colonialism.29 To better understand the history of IP in a particular colony or period, or on an imperial level, we should understand both the imperial form and its substance: its legal modes of operation and its ideologies.

For example, the Ottoman Empire acted as a unified legal system. Laws enacted in Istanbul applied throughout the Empire.30 Implementation, enforcement, and practices varied, but the law was one. The British Empire had a complex system, depending on the kind of colony and the topic at stake. Self-governing dominions, as their name indicates, had the greatest leeway in enacting local laws, but the initiative and motivation might have emerged from London, resulting in some cases, as with Canada’s copyright law, in friction.31 Crown colonies had the least local leeway.32 Mandates had different degrees of independence.33 Note that most of these cases, when we talk about the local government, it was the British colonial government, not a democratically elected one. We should observe these legislative (and judicial) patterns so as to avoid the assumption that all laws behaved the same in all locations. The differences themselves give rise to interesting questions, such as the one mentioned above about the British differential approach to handling copyright, patent, and trademark. We should not neglect other channels of law-making, especially the judiciary.

Understanding the legal and bureaucratic operations of the empire is the beginning, but within it, we should search for the underlying ideologies, incoherent and messy as they might have been. For example, the British declared their policy of implementing the rule of law in the colonies,34 often entangled with the self-proclaimed civilizing mission.35 The declared ideologies, and more importantly, the hidden ones, if we can unearth them, are crucial in understanding the development of the law in a colonial context. For example, the ‘rule of law’ as a headline seems benevolent and a much-aspired to characteristic of a functioning democracy. However, when officially declared as the colonizer’s policy, the new law immediately negates any other form of law that predated the colonization and treats it as unworthy, or worse, one that violates the rule of law. Similarly, the headline of the civilizing mission immediately implied that the new-to-the-Empire territories were uncivilized.

The differences in power did not always mean a brute suppression of local voices. In some cases, the colonizer did listen and respect local norms and practices, or the local population welcomed the new winds and assimilated them into its social and legal fabric. This situation can be treated as a case of legal pluralism. The general lesson is that the law, neutral as might seem to be at first sight, necessarily carries additional layers of meanings.

IV. Intellectual Property

Courts often focus on the law at stake in an isolated manner as they engage in an instrumental legislative history. This practice might explain the reason behind a particular rule,36 or fit an originalist mode of interpretation that locks contemporary interpretation to the original intent of its drafters. The study of legal history should go beyond the rather narrow judicial engagement with legislative history. The framework presented here can offer guidance for better understanding colonial transplants within a broader context. However, each legal field, namely the regulated subject matter of the foreign law, has its unique characteristics and features. I highlight some of the most salient IP features in the colonial context.

First, IP is based on information and knowledge, rather than tangible objects. Copyright subsists in a work of authorship rather than in the object in which it is fixed. Fixation is often a prerequisite for legal protection, but it serves other purposes, and the object itself is considered chattels and enjoys regular property protection. Text-based works, music, drawings, photographs, and today any work in a digital form, easily cross borders, as does scientific knowledge embedded in an invention, or a commercial message embedded in trademark, which is attached to a product. The intangibility of IP means that global protection matters. Otherwise, if inventions are protected in one jurisdiction but not in another, the local law might become irrelevant. This realization brought Western countries to form the IP treaties of the late nineteenth century, the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Note that this feature is absent in other legal fields: other than British convenience, there was no inherent reason for negligence law in Cyprus, Kenya, and Hong Kong to be internationalized and harmonized.