A few days ago, I wrote about my experience at the National Archives of India, and a peculiar feeling which I called “archival anxiety” — or arch-xiety, if you will. Today, I have something in a similar vein to share. But, this time, it’s not from my wandering through dusty documents, but from poring over a piece of writing.
So, I just finished reading an 11-pager, fascinating piece by Prof. Jose Bellido named Intellectual Property and the Question of the Archive from a 2017 open-access handbook edited by Irene Calboli and Maria Lillà Montagnani. And, as with much of Jose’s work, it’s brimming with sharp observations and research gaps waiting to be filled, or at least, explored. I would strongly encourage our readers to check, which demands and deserves a slow reading and reflection. If nothing else, you will come out with some exquisite sentences worth quoting in full and some valuable citations related to IP history.
Finally, before I share the excerpts, I must say something about him. Jose, in addition to being a very generous and supportive scholar, is a professor at the University of Kent and one of the finest scholars working on the history of IP today. You can find more of his work here — and if you haven’t dipped into it before, you really should.
Okay, that’s it for introduction. Below are a few excerpts from his piece.
In the introduction, he writes (footnotes omitted)-
“Classified documents, patent files, disclosures, trademark records, originals, copies, collection agencies, registries, bureaucracies, proceedings, intangible properties, and access (or not)— the stuff of intellectual property (IP) is deeply connected to the institution of the archive. From family to corporate archives, from local to national and diplomatic offices, the trajectories of the intangible can be traced through such paper trails and holdings. The question— ‘What is the point of copyright history?’— was the subject of an academic conference some years ago. The answer to that question was that the point of copyright history, which could be extended to IP history, is ‘evidently’ archival. The archive— often the product of time- consuming, painstaking, frustrating, expensive, and unassuming labour— with all its literal and metaphorical potential, is full of contingencies and hazards, a repository of hopes and documents frequently leaving a mark or scar on the subject. Not recommended for those in a rush, the archive is a slow and deliberate medium, requiring one to wait for the rare opportunity to capture the ‘phantom’ of IP. Such an intimate link to a nebulous subject matter situated between the past and the future initially made its custodians, the archivists, wary of copyright law.4 While the digital environment transformed earlier fears into risk assessments, the relationship between the archive and IP history remains crucial as it goes beyond specific terms and conditions.
One of the most interesting things about archival research is not what has been found here or there but how IP scholars have approached the question of the archive in different ways. Socio-legal, economic, cultural, anthropological, and legal historians have all dipped into archival records with diverse assumptions about IP— empirical, theoretical, or otherwise. While some immediately found archival challenges to their epistemic endeavours, others continued the search, blurring disciplinary boundaries and becoming less concerned about orthodoxy and convention than in how and to what extent different archival orders determine our historical research. This chapter explores how these varying approaches culminated in remarkable projects undertaken by different scholars in the history of IP. It highlights not just the importance of such undertakings but also their inherent limitations. The constraints of those projects are not seen as negative features but as a reflection of the elasticity of the archival function and its connection to the history of IP law; and this chapter considers both the ways of conducting archival research and the questions that might arise from such work.“
In conclusion, he notes
“The question of the archive and its relation to IP history has been approached differently by scholars, not only reflecting their personal research interests and agendas but also their diverse takes on the relationship between law and history. While some describe their work as having been influenced by different archives,40 others recall their archival encounters as the key to helping bring ‘[trademark] registrations to life’. What seems to unite these remarks is an overall sense of gratitude towards archivists and those who helped with the tracking down of sources. Seduced by the archival function, IP scholars have even started recording their own conversations on history. With that said, most archival work in IP scholarship still attempts to embody the ideal of positivism, that is, ‘merely to show what actually happened’. The problem with such an approach is that it obscures the archival function, representing the archive as a neutral and uncontentious historical tool. Even the most meticulous contextualization tends to ignore how its condition of possibility is conjured up in previously deposited archival productions. More to the point, this unquestioned historiographical manoeuvre often serves to fix a past, which is otherwise indeterminate. Precisely because of the capacity to open or close historical junctures, the archive remains significant not just as a repository of the past but as an enabling device to trace the coming into being of different explanatory narratives of IP law.Therefore, archival research allows us to problematize our taken- for- granted assumptions and the narratives that guide them. In so doing, the archive stands not only as a historical resource but as a way to reflect on the shifting operations of IP law and its different histories. It also makes us aware of the contingency of historically significant IP milestones— for example, how there was ‘nothing inevitable about the success of the Berne Convention, nor about the shape that it should necessarily take into the future’. For, as has been recently noted, the archive ‘is not simply a repository of the past. It is also the principle of formation of the past, the present and the future’.”
Hopefully, these excerpts will tempt you to dive into the whole piece. Who knows — you might just find a research thread worth pulling.
See you in the next post.
IP Musings 