A Post-Colonial Framework for Researching Intellectual Property History

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 adds critical questions, in the context of imperialism and colonialism, namely, a post-colonial view of IP. As the Empires of the late nineteenth century and early twentieth century, especially the British Empire, extended their global reach, they applied their own IP law in the new territories they controlled. They did so mostly for their own benefit. Thus far, most IP history was told from the colonizers’ perspective. This chapter 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 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 sceptical of the official history and is a post-colonial approach to IP. Along the discussion, I provide some examples, mostly from copyright and trademark law in Mandate Palestine (1922–1948).