As well as some Javanese gong music and a rendition of Philip Glass’s Dance 2 in the Berliner Dom, I went to an exhibition in the Altes Museum about a new cultural institution which will be housed in the reconstructed Berlin City Palace.

The Humboldt Forum exhibition, which opened last month, presents the vision for the forum from its three main users: the Staatlichen Museen zu Berlin, the Humboldt Universität zu Berlin and the Zentral- und Landesbibliothek Berlin.

The exhibition cites three historical examples as influences on the new Forum:

The conception of the Humboldt-Forum is informed by three historical examples:

• The concept of a knowledge theatre as conceived by Gottfried Wilhelm Leibniz with regard to the Kunstkammer of the Berlin Palace is fundamental. For Leibniz, this collection, which marked the origin of Berlin’s museums, was a site that unified universally oriented collecting and research, exhibition and spectacle.

• The second conceptual foundation of this unique project is constituted by the ideas of the Humboldt brothers: Their enlightening gaze at the cultures of the world as well as Wilhelm’s notions on education and museum-related politics.

• Finally, recollections of the rich tradition of ethnological collecting in 19th century Berlin that culminated in the establishing of the Royal Museum for Ethnology by Adolf Bastian in 1873 refer to the collection history of the material that will constitute a large portion of the exhibits in the newly constructed City Palace.

The first of these, Leibniz’s idea for a ‘new sort of exhibition’ is laid out in a short piece from 1695 called Drôle de Pensée, or ‘a funny thought’, which was written after he saw a machine which ‘walked on water’ at an exhibition in Paris.

He says the exhibition would be a big undertaking, requiring significant capital and the assistance of ‘painters, sculptors, carpenters, watchmakers, [...] mathematicians, engineers, architects, boat builders, fools, musicians, poets, bookbinders, typographers, engravers and others’, coordinated by two or three highly inventive directors.

He then launches into a long and fragmentary list of weird and wonderful attractions that could feature at the exhibition:

• des Lanternes Magiques (magic lanterns)
• des vols (flights)
• des meteores contrefaites (artificial meteors)
• toutes sortes de merveilles optiques (all sorts of optical marvels)
• une representation du ciel et des astres (a representation of the sky and stars)
• cometes (comets)
• Globe comme de Gottorp ou Jena (a Gottorf globe)
• feux d’artifices (fireworks)
• jets d’eau (fountains)
• vaisseaux d’estrange forme (vessels of strange shapes)
• Mandragores et autres plantes rares (mandrakes and other rare plants)
• Animaux extraordinaires et rares (extraordinary and rare animals)
• Cercle Royal (royal circle)
• Figures d’animaux (figures of animals)
• Machine Royale de course de chevaux artificiels (royal machine with artificial horses racing)
• Prix pour tirer (archery prizes)
• Representations des actions de guerre (recreations of actions of war)
• Fortifications faites, elevées, de bois, sur le theatre, tranchée ouverte, etc. (elevated fortifications made of wood, cut open, etc.)
• Guerre contrefaite (artificial war)
• Exercice d’infanterie de Martinet (infantry exercises of Martinet)
• Exercice de cavalerie (cavalry excercises)
• Bataille navale en petit sur un canal (small naval battles on the canal)
• Concerts extraordinaires (extraordinary concerts)
• Instrumens rares de Musique (rare musical instruments)
• Trompettes parlantes (talking trumpets)
• Chasse (hunting)
• Lustres, et pierreries contrefaites (chadeliers and artificial gems)
• Theatre de la nature et de l’art (theatre of nature and art)

• Luter (lute)
• Nager (swimming)
• Danseur de cordes extraordinaires (extraordinary rope dancer)
• Saut[s] perilleux (perilous somersaults)
• Faire voir, qu’un enfant leve un grand poids avec un fil (seeing a child lifts a great weight with a piece of string)
• Theatre Anatomique (anatomical theatre)
• Jardin des simples (medicinal garden)
• Laboratoire (laboratory)
• des petites machines de nombres (little number machines)
• tableaux, medailles, bibliotheque (pictures, medals, a library)
• Nouvelles experience d’eaux, air, vuide (new experiments with water, air, vacuums)
• la machine de Mons. Guericke de 24 chevaux (Guericke’s machine with 24 horses)
• l’operation de transfusion, et infusion (operations of transfusion and infusion)
• Item pour congé on donneroit aux spectateurs, le temps qu’il fera le lendemain, s’il pleuvra ou non ; par le moyen du petit homme. Cabinet du pere Kircher. (Item for visiting spectators who would be told the weather the next day – whether or not it was raining – by a small man. Office of father Kircher)
• l’homme qui mange du feu etc. s’il est encor en vie (the man who breathes fire, etc. if he is still alive)
• la lune par un telescope aussi bien que d’autres astres (the moon and astral bodies by telescope)
• un beuveur d’eau (a water drinker)
• des machines, qui jetteroient juste, sur un point donné (machines which project things at a given point)
• Des representations des muscles, nerfs, os, item machine representant le corps humain (representations of the muscles, nerves, bones, a machine representing the human body)
• Insectes de Mons. Schwammerdam, Goedartius, Jungius. (insects belonging to Schwammerdam, Goedartius, Jungius.)
• Myrmecoleon (an ant-lion)
• Disputes plaisantes et colloques (funny and colloquial disputes)
• des chambres obscures (a camera obscura)

• Peintures qui ne se voyent que d’un costé de certaine maniere, et d’un autre de toute autre (paintings which show one thing from a certain angle, and from another angle something different)
• Rejouissances publiques (public celebrations)
• Des grotesques peintes sur du papier huylé et des lampes dedans (grotesque pictures on oiled paper with a lamp inside)
• Ballets de chevaux (ballet of horses)
• Machine des arts (artificial machines)
• Force du miroir ardent (force of a burning mirror)
• Feu Gregeois de Callinicus (liquid fire)
• Jeu d’Echec nouveau d’hommes sur un theatre. Comme dans Harsdorffer (game of chess, young men on a stage, like in Harsdorffer)
• Auffzüge à la mode d’Allemagne (procession in the German style)
• d’autres especes de jeux en grand (other kinds of great games)
• une comedie entiere des jeux plaisans de toutes sortes de pays (an entire comedy of fun games from all different places)
• une nouvelle espece de jeu utile (a new kind of useful game)
• Comedies des metiers; une pour chaque metier, qui representeroit leur adresses, fourberies, plaisanteries, chef d’oeuvres, loix et modes particulieres ridicules (comedies of different occupations, showing the aims, deceptions, amusements, main works, laws and ridiculous peculiarities of each one)
• Dragons volans de feu, etc. (fire breathing dragons etc.)
• Moulins a tout vent. Vaisseaux qui iroient contre le vent (windmills, ships that can sail against the wind)
• Instruments qui joueroient eux mêmes (instruments that play themselves)
• Carillons etc. (carillons)
• Machine de Hauz d’une cavalerie et infanterie contrefaite, qui se bat (the machine of Hauz of an artificial cavalry and infantry which is fighting)
• L’experience de casser un verre en criant (the experiment of breaking glass by shouting)

The piece goes on to describe the potential value of the proposed exhibition – saying it would stimulate and instruct people with beautiful and amazing sights. It would become a clearing house for all inventions and a theatre for all things that can be imagined (un theatre de toutes les choses imaginables). People would be awed and inspired, and the whole enterprise would have ‘good and important’ consequences.

He then returns to the detail of the exhibition, suggesting it could be spread out across a city or in different rooms in a palace before going on to discuss mirrors and pipes, dancing, pygmy ballets, fountains, lakes, sea battles, marionettes, shadows, somersaults, apparitions, small figures, and so on – all accompanied by music and singing. If its anything like Leibniz’s vision the new Berlin palace sounds like it will be incredible.

For more see:

• Leibniz’s Drôle de Pensée on Wikimedia Commons (from which the above is taken and roughly translated)
• A commentable version of the French text with notes in English – possibly towards a new (freely distributable) translation.
• Philip P. Wiener’s full English translation from 1940 with ancillary notes: “Leibniz’s Project of a Public Exhibition of Scientific Inventions”, Journal of the History of Ideas, Vol. 1, No. 2 (Apr., 1940), pp. 232-240
• An article in 3 Quarks Daily alluding to Drôle de Pensée by Leibniz scholar Justin E. H. Smith
• Ludger Schwarte and Jan Lazardzig’s Collection, laboratory, theater: scenes of knowledge in the 17th century – in particular pp. 268ff.
• A website about Kunst- und Wunderkammern from around the world

The International Society for the History and Theory of Intellectual Property (ISHTIP) was launched last year at the conference for copyrighthistory.org, a digital archive of primary sources on copyright. In addition to the history of copyright, patents and other rights, the society aims to examine:

[...] the diverse “roads not taken” in the evolution of these legal structures; of contemporary countertrends; and of the laws and norms that have been devised in non European cultures around the world to manage intellectual production and exchange.

The first annual workshop took place on 26-27 June 2009 at Bocconi University, Milan. The theme for the event was “The Construction of Immateriality: Practices of Appropriation and the Genealogy of Intellectual Property”:

This workshop will explore the making of “intellectual property”, understood broadly as the myriad legal and non-legal processes by which individuals and groups are credited with, and rewarded for, the authorship of intangible creations, while others are condemned or penalised for using or claiming such creations as their own.

While most contemporary discussion focuses on the legal regimes of copyright, patent and trade mark (and corresponding legal wrongs of piracy and counterfeiting), the premise of this workshop is that these constitute only some of the many ways in which ‘creations’ are identified, and entitlements relating to such creations are recognised or generated. For example, groups from chefs to magicians regulate the creative activities of their members through bodies of customs and less formalised norms, while other institutions and groups (from universities, to the Church and to medical associations) offer their own systems of sanctions against those who are considered to have made use of intangible material in an ‘inappropriate’ manner. Equally, specific traditions have developed for attributing authorship of publications and inventions amongst scientific researchers, while astronomers, meteorologists and botanists confer rights to name particular phenomena on those who are viewed as having ‘discovered’ them.

What is the source of these diverse mechanisms? How is it that some intellectual artefacts have come to be identified, abstracted from their material reality, mapped and their authorship attributed to particular individuals or groups whereas others circulate socially without such attribution? To what extent are the processes by which ideas and information are transformed into discrete ontological entities historically specific? What, precisely, are the social and other conditions that render such processes possible? Why have different intangible artefacts been treated in different ways? And how have they operated historically to facilitate, or impede, intellectual production and exchange? How have legal and non-legal “intellectual properties” interacted? To what extent can the shape of contemporary legal intellectual properties be explained by reference to social norms (either as pre-cursors to formal laws, or as alternatives to and limitations upon such laws)?

By focusing on the heterogeneous roots of our present intellectual property regime the workshop aims to foster richer contextualization of this regime than can be provided by legal history working alone. To this end it will assemble scholars from across the disciplines – from anthropology, economic and business history, the history of science, literary and cultural history, as well as from legal history and theory.

The programme contains links to abstracts and full versions of many of the papers.

Overall it was an enjoyable and truly multidisciplinary event – with a rich mix of input from lawyers, economists, historians, social scientists, and others.

Conference notes

Following are some partial, impressionistic notes from the conference. If you spot anything that you think should be amended, please get in touch!

Gustavo Ghidini (Università degli Studi di Milano), Introductory remarks

• Welcome to ISHTIP. Aim is to support scholarly investigation not only into established national and international regimes but also into possible future regimes. To look at norms and practices across different cultures. To examine the past, present and future of intellectual property.

Michael Birnhack (Tel Aviv University), Copyright in Mandate Palestine: Nationality and Authorship

• Scope: Jewish Yishuv. History of Israeli copyright law.
• Timeline of major historical events:
  • 1917 British takeover. Military administration.
  • Then in 1920 a civil administration.
  • 1922 Mandate.
  • 1948 Israel.
• Timeline of events of direct relevance to copyright:
  • 1910 Ottoman Authors’ Rights Act.
  • 1920 British Copyright Ordinance.
  • 1922 same legal framework, instructed to turn to English Law and Common Law.
  • 1924 Act of 1911 + Ordinance.
  • 1930 first copyright case: PRS v. Zion Theatre.
  • 1932 Telegraphic Agency Case.
  • 1933 PRS v Grand Cafe.
  • Mid 1930s – establishment of radio.
  • 1937 first case between Jews Margolin v Schocken.
• Why was there a gap between first act (1910) and first case (1930)?
• Few lawyers. Train in Turkey, Jerusalem, Germany.
• Law schools. Jerusalem Law Classes: British, practical. Didn’t teach any IP until 1940s. Law & Economics, Tel Aviv: didn’t teach copyright until 1940s. Libraries did not have current editions. Copyright literature: Russian, Jewish. Popular press about copyright: foreign stories. Hence one explanation of why late to bloom.
• Cultural field. Only in 1920s was there a change. Authors and publishers immigrate in 1920s. 1921, 1926: Authors’ Association. Growth of reading audience. Yiddish was fought against – considered old. Hebrew – language and culture.
• Image of the author. Authors were narrators of story of Zionism. Self comparison with Halutz. Admired new Hebrew Zionists. Intellectual pioneers. Author as part of the collective. Collective before the individual. Also romantic notions of authors as poor, hungry, wants to be heard. Authors were well organised.
• 1910 Ottoman Act. Limited in scope. Life + 30. Formalities. No moral rights. Infringement was criminal matter.
• 1920 Copyright Ordinance. Photographs, records. Life + 50. No formalities.
• 1911 Act. Published only in 1934. Did not go unnoticed that it was not published. Petitioned for publication but denied as it was ‘too sophisticated’. Berne compatible.
• 1924 Copyright Ordinance: criminal aspects.
• Foreign transactions. Book published in Germany. Author, publisher immigrated. Infringement in Palestine.
• Foreign infringements. Translated and printed abroad. Copyright relations with US only established in 1933.
• Author publisher relationship. Moral rights.
• Authors (late 1920s). Public assertion of moral rights. Shaming the infinger (publisher, theatre). This was effective. Publishing notes in newspapers declaring infringement. Public apologies.
• Publishers. Announcing ownership. We have bought rights of X, and are working on a translation. Warning other publishers.
• Lessons. Foreign law imposed but not used until early 1930s. Foreign players used the law. First cases were from London. Technology triggers the law. Establishment of the radio. The British did profound and detailed work before they established radio. Allocating time to the minute. Concerned about copyright issues. Placed radios in public places. This counts as performance. Lots of correspondence with BBC and UK Government. On the one hand the British thought that Jews were organised more like Europeans and that their music was like European music. Based on PRS model. On the hand they thought that the Arabs were less well educated, that their music was popular and hence there was no copyright there.
• Image of the author. Romantic with national undertones.
• Overtones of Orientalist approach towards Ottomans and towards Arabs.

Questions

• Q: Two questions.
  • (i) Question about globalisation. British law wasn’t applied for 20 years or more. Wasn’t considered important?
  • (ii) Moral rights. Romantic author. Connection between moral rights and notion of romantic author.
• A: Re: (ii) some authors did care about integrity and attribution. Asserted rights. Strong sense of being part of the collective, but inferior to real pioneers. Speculative response is that many came from Central and Eastern Europe. Not sure what copyright attribution practices would have been. Re: (i) because copyright was not used by industries. People copied all over the place. Everybody infringed everything all the time.
• Q (Lionel Bently – LB): Romantic notion of the author. Translation into Hebrew from Eastern European languages. Author had role in relation to building of nation. Translator as author.
• A: Reading audience was not large enough in 1910s for authors to make a living. Zionist agency initiated translation project. Training people to read in Hebrew (which served nationalist agenda). Translating in Hebrew – even though not originally in Hebrew. Getting material in Hebrew and a job for authors. Translated classic texts from French, German, Hungarian, etc. into Hebrew. Translators played an important role in Ottoman Law.
• Q (LB): Complex relation between nationhood and authorship. Simplification of notion of authorship.
• A: Literature on authorship has given more attention to romanticism than to nationalism. National identity might be relevant to the cultural construction of the author.
• Q (Eva Hemmungs Wirtén – EHW): 1911 Act contained lots of mistakes. Could you expand on that?
• A: The Act’s translator’s theory of translation. Sometimes it should be literal, sometimes should be interpretative. Translated ‘to reproduce’ as ‘to perform’. Translated ‘to engrave’ as ‘to tattoo’.
• Q: (Martin Kretschmer – MK) Could you say more about norms?
• A: Did have copyright practices. Norms. Contracts going on. 10% rule. How much. In terms percentage. Did not discuss ownership, new editions or new forms of technology. Contracts were very simple. You may translate, reproduce, etc. 10%.

Friedeman Kawohl (Bournemouth University), Copyright History as a Means to Justify Current Positions on Copyright Politics

• Stepping back to 19th century.
• Dispute between publishers and librarians on subject of double prints. Double prints are nearly identical but with extremely minor variations (typography, etc.).
• Librarians claimed that publishers had produced double prints to concel number of copies from authors.
• Auflagen (impressions) and Ausgaben (editions). According to Milchsack, the difference between impression and edition was ficticious.
• Reset. Not photo based reproduction (which didn’t happen until 1870s).
• Voigtländer. Publishing firm later became Springer. (One of biggest journal publishers today.)
• Booksellers expected to return unsold copies or pay for them. List of booksellers who defaulted. Mechanism for reminding booksellers.
• Voigtländer created book on copyright legislation and sample publishing contracts. Big hit with publishers.
• Voigtländer’s copyright agenda. He thought copyright law was biased towards authors and against publishers.
• Voigtländer described four different modes of cooperation between authors and publishers.
  • (a) Author offers work without suggestion by publisher.
  • (b) Author acts on general suggestion.
  • (c) Publisher commissions author for a project. Author works within general framework.
  • (d) Acquires cooperation for a commercial book project (e.g. translation, etc).
• He argued that law focused on (a) and (b) but not enough on (c) and (d).
• Copyright in newspaper/encyclopedia consists of copyright of parts, not whole.
• Voigtländer interested in copyright history. Particularly interested in Prussian Statue Book of 1794. History as something to be proud of and to learn from. Righteous publishers had overcome pirates. Basic rules to ban pirating had been agreed upon by publishers. Saw later legislation as reinforcement of their rules.
• Voigtländer published multivolume history of booktrade. Founded a journal on the same topic.
• Milchsack was an important librarian. Milchsack covers problem of double print. Question arises whether later book is later impression or later edition. Argued that many books said they were later impressions, but were really later editions. Authors reserved right to be remunerated for subsequent editions. Publishers created new editions, but did not let authors know.
• E.g. Tacitus edition. Two versions. Imprint is similar. One says first impression, the other says second impression – both say 1801. Says they are in fact two editions. Two volume work of over 1000 pages is unlikely to be printed in one year. Identifies small deviations is typesetting. When new impression is made the author keeps the type set (prototype?). Many old mistakes were corrected and new mistakes arose. Börsenverein not pleased by this.
• If a new unmodified print is undertaken this is an impression. If it is reprinted from scratch, this constitutes a new edition. If new contract does not explictly specify number of impression – then publisher may reprint without permission. If contract does specify, then publisher must seek permission. Few authors had bargaining power to cap number of impressions.
• Börsenverein publication on rights of authors and publishers.
• Voigtländer said double prints were legitimate within the business practices of the time. Alluded to Prussian Statute book. Milchsack said distinction between impression and edition had no meaning prior to Prussian Statute book – hence was excuse for publishers.
• 1898 Voigtländer writes he hopes that publishers who commission works will be taken account of. Nicholai exerts influence on legislation. Played trump card – acquaintance with editors of law books.

Questions

• Martin Kretschmer: Contextual comment. 100 years after Prussian Statute Book. First case of regulating contracts directly. Can’t publish new edition without contract with author. Reconstruction of this paragraph was subject to much debate.
• Q: Origins of Prussian law. Revisionary right. Idea of Statute of Anne. Had that filtered through?
• A: Not that I’m aware of.
• Q: Is there German copyright law that predates printing?
• A: Didn’t find anything.
• Q: Relationship between copyright history and copyright activists. This episode is a wonderful example. Any contemporary cases?
• A: I’d like to ask the audience for their views. Academics biased towards authors. Media biased towards publishers.

Jaime Stapleton (Birkbeck College, University of London), The Immaterial Image: Creative, Legal and Economic Theory 1435-1607

• Part I: rereading of history of privileges in Venice
• Pre-history of copyright?
• Internal and external demand.
• Printing not controlled by guild until 20 years after printing. Equilibrium model. Limiting level of labour meet demand. Guild ensures control of level of labour. How do you suck in enough labour to satisfy external demand? Disequilimbrium model.
• How do you increase volume of trade rather than limit supply of labour?
• Massive external demand. Want to increase volume of trade, not limit supply of labour. More trade means more revenue through taxation for the government.
• There are some craft guilds which have large export markets (non-equilibrium market). Reason guild structure applied to them was that printing was an imported industry. Historical reason for there to be guilds.
• How printing privileges are used.
• 1492 opening up of printing. Often portrayed as a landgrab. Assets which are desirable. More complex than that.
• Main regulatory issue is to increase volume of trade. Pre-existing system of granting privileges. Way of limiting competition. By not having a guild you do not limit supply.
• Market for prints. Market based on commission, and market based based on speculation.
• Regulatory problem – how do you increase supply of labour, machinery, etc. and prevent competition ruining the industry.
• Protect stock, protect images. Purposes not a landgrab so much as remedial action for situation where prices are collapsing.
• 1474 Statute on Industrial Brevets. Said by some (perhaps dubiously) to be origin of patent law.
• Encourage diverse publications. Different kinds of publications. Not everyone printing the bible.
• People writing patents are not idiots, they are fairly sophisticated in their economic comprehension.
• 1496 De Spira Privileges.
• 1517 Decree of Press Affairs. Going to revoke all previous privileges. Way its traditionally read is abuse of previous privileges. Why then would they bring them back again? When you see it as an attempt to divide price competition from innovation competition. (Cf. Schumpeter on price competition and innovation competition.) Competetive on price for some works and promotion of diversification on other works (not new works, but previously unpublished works). No point in doing this in modern terms. Works when industry is very big, and external market is very big.
• Not remedy for abuse of privileges, as sets up another set of privileges.
• Different system. Limit of supply. (Similar to limit of supply of content on the internet – which has ISPs worried.)
• Further reforms 1534 & 1537.
• 1545 – decree on author printer relations
• 1549 decree establishing the venetian guild of printers and booksellers
• 1567 decree (of 1549) enacted
• 1603 guild copyrights
• Paul David (economic historian) wrote interesting account of this. Says of 1445 decree on author printer relations prompted by continued unauthorised printing of works for which copyright had been granted.
• But this is not what text of decree actually says. Dispute between particular well-placed and anonymous author. Work has been taken and printed without permission. Argument not between printers (regarding pirate and authorised texts).
• Attempting to bring diversification into the market. Insufficient supply. Printers are sitting on privileges and not printing. Printers are leaving the city as there isn’t enough stuff to print. No printing unless there is a letter from the author to the printer authorising.
• Why form a guild? After 80 years of experiments with free market and various levels of control, regulation. Possibly related to censorship? Difficult to find authors? But there is a 17 year gap before it is enacted. Rather guess that there is a rise in printing around Europe. Levers don’t work. Nobody was sure that it was going to work. (Cf. Elizabeth Armstrong’s book – which is an interesting source.)
• Copyright historians ask – why start medieval guild in 1603? One reason is guild has right to control imports.
• Section II
  • 1492 Pietro Francesco de Ravenna Privilege
  • (Bernardino Banalio privileges 1500-1529)
  • 1500 Anton Kolb Privilege
  • 1504 Benedetto Bordon
  • 1506 Durer v Marcantonio Raimondi (dispute)
  • 1514 Zuan da Brexa (da Porexa) Privilege (‘right of justice’ arising from dispute)
  • 1516 Ugo da Carpi Privilege
  • 1566 Titian Privilege (in expeption of dispute)
• Rhetoric: Memory, invention and arrangement
• Older translations of 1474 law say that Venice has within it men who ‘imagine and discover’. ‘Excogitate’. Very important for art.
• German scene. No privileges or guilds. Cut throat competition.
• Images are not marginal to the system. Have the idea that author is at the centre – but images were very important too.
• Dürer comes to Venice to complain about reproductions of his work. Unfortunately no documents remain.
• Case of Zuan da Brexa’s Privilege. Asks for privilege to continue to print series.
• Titian Privilege. People who copy use little effort and might damage name of the author.
• Where does this notion of right develop? In 1474 – mentions words ‘discover and excogitate’.
• Important works:
  • Aristotle, Art of Rhetoric
  • Cicero, De Oratore & De Inventione
  • Thomas Aquinas, De Veritate
  • Leon Battista Alberti, De Pictura (1435)
  • Giogio Vasari, The Lives
  • Federico Zuccaro, L’idea de pittori, scultori, e architetti (1607)
• Aquinas – discussion of deduction and induction. Drawing on Plato and Aristotle. Innate idea. Also product of your experience of the world. People can have great ideas, even though there is only one great idea in God. Architect must think out form of house before they build it. By means of excogitated form that you build up in your head. Through this process you can form your own quidities (or essences). Composition and division made way into medieval language theories. Fallacy of composition = induction. Fallacy of division = deduction.
• Forensic rhetoric – rhetoric taught to lawyers. Practically all the training there is. Hence importance of the manual.
• Process of discovering facts which can be arranged in an argument.
• Observation and arrangements are induction. Ideas related to deduction are given from God.
• Invention means discovery.
• Invention in modern sense comes from Francis Bacon in 1605. To him invention is discovering new facts, rather than those already in the mind.
• Alberti talks about induction. There is no model of beauty in nature that is really perfect. Artist must take a hand from here, an idea from here, and create ideal beauty. Beauty from deduction.
• Hands are words, sentences are arms, etc.
• Giorgio Vasari. Notion of creative labour established by Alberti. By time Vasari comes along in mid 16th century.
• Two forms of labour. A priori mental labour. Not idea given by divine right of God, nor a neo-Platonic idea. (In reformation need to re-theologise practical ideas of induction.)
• Two artists who exemplified theory in Alberti’s text are Piero della Francesco and Mantua Andrea Mantegna.
• Mantua Andrea Mantegna. Complaint to Ludovico – who commissioned Mantegna.
• Composition is something can be owned. Notion of invention and arrangement.
• “… as communal things are the property of all, and each may use them freely, possessing a part of them as the wealth of the republic, yet no one may become their absolute master except the Prince himself; in the same way we may say that, since the intellect and the senses are subjects to Design and concept, Design, as their Prince, ruler and governor, uses them as his property” (Federico Zuccaro)

Questions

• Q: Legal and economic approach. Not sensitive enough to which value is attached. Talking about reproductions, copies and so on. Mantegna is a court painter. Produces things which are not movable. Need to have permission to go to court, need to know people. Not talking about piracy, not copying DVDs. No erosion of original. Medals are another way of achieving same goal. What we are dealing with is not debate over piracy. Debate about control of quality. Not trying to make money. Trying to produce his fame. Sometimes in these early issues we are not talking about property we are talking about proprietry (as Mark Rose discusses).
• A: There are problems with quality. Issue about copying is important. Argument between Dürer and Marcantonio. Images are ones that Durer took and secured privileges – not ones he created. About ‘AD’ logo, not about property.
• Q: Two questions
  • (i) Problem with interpretation of guilds as regulating labour. They had many other functions – quality and so on. Some guilds take 50, 60, 70 years to be created. You need a certain number of people.
  • (ii) People presenting legislation. Often overlooked. People who present law are trained humanists. Venice was run by nobles with different agendas.
• A: (ii) In the full version of the paper there is a lot on the humanists. (i) What you say about guilds is very interesting. Economic historians view of guilds. Views in “Guilds and civil society” and of Karl Polyani. Enough people to develop a guild. Arguments related to knowledge transfer. More subtlety in full text. By and large agree with both comments.

Martin Kretschmer and Sukhpreet Singh (Bournemouth University), The Paradox of Television Formats: Why pay for of something that is free?

• Background. Part of grant. Useful for industry.
• Website: http://tvformats.bournemouth.ac.uk
• What is a format? Structure of program. Music, competitions, … Video on various understandings of formats.
• Format type disputes. Later we will see how certain plots and dance routines are subject to legal protection.
• Top Global Formats. Who Wants to Be a Millionaire (Celador) is top.
• TV Formats Disputes Database. 59 disputes from various jurisdictions.
• Fields: ID, year, issue, jurisdiction, claimant, defendant, grounds of dispute, actual legal action (Y/N), judgement, remarks/comments.
• Sometimes settle out of court and hence we do not know what happened.
• Methodological issues. Absurd to do empirical research – as we do not know what effect ruling has on these issues. Precedent.
• Format disputes per year. Reported in trade press.
• Today information flow is much more regulated.
• Type of format disputes (nature of claim). 80% copyright infringement. 8% breach of confidence. 5% contract. 2% passing off. 5% other. E.g. ‘inappropriate boxing procedure’ claim in US.
• Copyright infringement was upheld in 12% of cases. 37% rules in court. 50%/50% rulings in favour of claimants and defendants.
• Used this data for semi-structured initerviews at trade fairs.
• Patterns leading to stategies.
• Importance of brand. Same format, logo, set design, music, … One of benefits of strong brands is opportunities for merchandise.
• Identified 14 patterns.
• Model of TV format exploitation and protection. (Given absence of protection.)
• Formalising & transacting know-how. Confidentiality/non-disclosure agreements. Production Bibles. Production elements. Flying procucer systems.
• Brand management. Trade marks. Pre-localisation. Localisation. Innovating and extending the brand.
• Social & distribution networks. Trade fairs. Local production base/affiliate offices. Speed to market. Meditation (E.g. FRAPA).
• Intelligence gathering. In house legal expertise (dubious legal letters).
• To what theories does it make a contribution? Social norms. E.g. magicians.
• Unclear what a social norm is. Etiquette norms. Religious norms. Throw them all together and call them ‘social norms’? May be unproductive.
• Material has many potential applications. Many possibilities. Not decided what to do with it yet!

Questions

• Q: Where is the author in your research? Role of organisations like format Author Association?
• A: Registration mechanism for formats. Agreement that none use other members’ formats. Not a success. Speed is important. Infrastructure to deploy quickly. FRAPA. Lots members, lots not, lots can’t be part of FRAPA. FRAPA had a bad reputation. BBC are not part of FRAPA. BBC said they did not want prescriptive solutions. In industry’s interest not to be formalised. Want semblance of IP rights without too much regulatory intervention. Want rhetoric of IP rights.
• Q: What happens in absence of clear legislation is that large players are favoured. Insufficient regulation has caused lack of diversity.
• A: Both seem to be reasonable points. It seems to be historically that if you leave things unregulated then there is movement towards cartels or bullying by the big players. Formats work as insurance. Big players are able to make them successful because of strategies such as those we’ve described. Because of nature of product. Smaller players can’t compete.

Emanuela Arezzo (Luiss Guido Carli, Roma), Towards a New Definition of Technology and towards a Broader Definition of the Term Invention?

• Term ‘invention’. Substitute term ‘invention’ with ‘product’ or ‘process’. Too strict to cover future technology. List of things which cannot be considered to be inventions.
• Hard to find criteria to cover subject matter for Article 52. To be comprehensive.
• Sense of what is technical from German jurisprudence. Invention is technical when it uses natural forces to produce an alteration in something. Roman law. Taking raw material he does not own and transforming it – grants him property rights.
• German/Latin doctrine.
• Framework of European Parliament Office. New inventions. Mixed type. Software, DNA, algorithms, business methods.
• European Patent Office has concentrated on software. Software is in non-patentable elements. Some inventions contain inter alia software.
• EPO has radically changed its mind. New cases which is changing doctrine. Made a big mistake.
• Mistake made as merging two different kinds of analysis.
• Concept of technical character.
• Lax definition of technical character impacts on definition of invention.
• Leave EPO train. Lots of things we take for granted as if codified law.
• Interpret term ‘technical’ in a way which is based on certain types of technologies.

Questions

• Q: Interesting paper especially for those who teach patent law. What isn’t invention. Makes a nonsense of EPO. Wider social reason why we need notion of invention. Is the problem the coherence of this law or is there a wider social impact?
• A: Nervous of making definition too strict. Danger that there may be no boundary at all.

Alain Pottage (LSE) and Brad Sherman (University of Queensland), Reproducing Nature

• Two parts: (i) Construction of immateriality, (ii) history of practice of depositing
• Nothing ontic about material/immaterial
• US law. Patent treatises.
• Patent was not a single document that could be perused and comprehended. Rather it was an assemblage of elements, documents and things that were kept in different places.
• We must include patent, specification,
• Patent certificate (only with short description). Specification kept separately.
• Concept of enclosure, concept of invention.
• William Robinson’s formula. Distinguising between form and functionality. Forms (e.g. sculpture). Functionality. Instrumentality is performative, dynamic, transitive, trace. Machine abstracted from its ends. Invention is way the machine interacts with natural forces. Not the machine, not the natural forces – but the intangible trace of interaction.
• This means that it is a recipe – a recipe you employ to elicit a particular effect from nature. Not just an idea of means, but an idea as means. What is the thing to which a recipe refers – arguably nothing. What is being disclosed is not a thing – but what is being communicated is a recipe. Invention is a procedure, not a things.
• In practical terms this means that it doesn’t matter what medium is used to disclose the invention. What the invention is is the idea that it is possible to recollect the invention. The inventor should not only conceive, but perceive. Recollection with a view to communication. (Could go off on separate path – invention is prototextual.)
• Fast forward to 1980s. Sequence inventions. Notion of invention falls apart. You suddenly have a thing which can be described. Gene sequence is matter and form, instrumental agency. It is the dream invention, except that it doesn’t work with the inherited scheme.
• Practice of depositing started in 1949. Antibiotic compounds. Not compound but procedure to produce compound. Found and then accrue them. How do you satisfy examiner? Deposit micro-organism. Same time as compounds are being patented, they are also being trademarked. From point of view of commodity, trademark is doing more of the work.
• Practice of depositing was for taxonomic purposes. Biological products being produced by corporations, rather than bespoke by scientists working on cultures. Research tool culture starts in 1930s. Depositories are one part of that mode of transaction. Less interested in commodification side, more interested in standardisation side. Everyone can be sure that particular tools can be tested within certain degrees of tolerance. ATCC (American Tissue and Culture Collection). If you look at ATCC’s activities it is a huge trademark. Bio-Escrow. Everything is trademarked – with a view to extracting recognition for the work that goes in.
• Materials which are engineered to be engineered. Synthetic biology. Bio-bricks enterprise. Similar mode of parts or organisms. Open source approach being undercut by DNA sequence practices.
• Everything happens on a screen. Manipulated on a computer.
• Developments in taxonomic practices in late 19th early 20th century. Prerequisite of naming new plant is depositing specimen at recognised place. Can’t seek patent protection until named first. Microbiologists cared less about naming. Deposit schemes were developed for taxonomic practice.
• Other questions. Where is the invention? In patent document, or in depository somewhere?
• What law effectively did was to develop hologram of plant. ‘Gloriously epidermal’. Surface of plant. Specication was a signpost to physical deposit. For taxonomic purposes have to deposit to assign a name.
• Deposit gives rise to certain practices – which had important ramifications for way law recognised invention in different contexts.

Questions

• Q: What about revisiting Wittgenstein? Or at least Stanley Fish? Language games which are transforming? Old cases where you had to teach invention.
• A: Two points. One more abstract the other more practical. Abstract point: reason Wittgenstein is wrong person is that we are not talking about actual interpretive community. Talking about normative shortcut. Practical point: not actually an issue. Possession is cipher for recollection, what can be held in the hand. Doesn’t go much further than that. Writings on function of patent law. Redundancy that gets you somewhere.

Jose Bellido (Birkbeck College, University of London), Copyright at a Distance: From Action to Management (1880-1910)

• Descriptions of the intangible: who describes? what is being described? where is it being described?
• Routines and legal technologies relevant to copyright in Latin America.
• Projection of Spanish copyright to Latin America. Involved practical problems.
• Exploitation of literary and dramatic piezas.
• Circuits, alliances and affairs. Tension over rights acquired.
• Spanish saw transatlantic copyright as adventure full of risks that needed to be secured.
• Case in Mexico of copyright agent seizing script from theatre company. Theatre company performed work from memory without aid of text. Piracy by memorisation. Problem when there was no underlying text to confiscate.
• Political profile of copyright registries. Censorship.
• Different issues in territories still qualifying as Spanish territories, from elsewhere in Latin America.
• Complex formation of dealings evident in documents, some of which lacked international recognition. Fragmented ownership.
• Private arrangements. Few contracts were public. Authenticating provenance with witnesses and a notary. Stamped paper functioned as a tax. Output was sensitive. Requesting documents in Spain was straightforward, but abroad required affidavits and diplomatic arrangements.
• Interdicts. Fast, aggressive, efficient and avoided legal confrontation. Considered unsuitable. Legal defences were remarkably successful – mobilising arguments around when, where and how property connections had been made.
• Protecting rights abroad and minimising impositions from other countries.
• Introduction of bodrereaux. Spread through continent. Information included dates, title of performances, number of tickets sold, etc. Shift from obligation to habituated practices. Legal to social obligation. Professional standards. Data relevant to copyright management.
• Ernesto Quesada, one of most important copyright scholars in Latin America.
• ‘Abyss’ and ‘labyrinths’ of pseudonyms.
• Copy office. Clerical staff. Flood of material. Attaching works to authors for collecting purposes. Cheap and fast collection. Trusted in good faith of theatrical companies and actors.
• Practical intelligence and social engineering. Solved controversies. From legal and communication problems to regular reporting, clearance sheets and bordereaux. Notions such as ‘author’ and ‘work’ needed reliable network to be secured abroad. Charts of established rates replaced negotiations and modified the way money, people and copyright were related.
• Auditing practices and regulatory process of collecting societies. International societal alliances. Instead of increasing numbers of representatives abroad, societies of authors were affiliated and copyright became more international on the ground.

Kathy Bowrey (University of New South Wales), Entertainment Rights in the Age of the Franchise: Audiences, Ownership and the Fictional Universe

• Intersection between property, technology and culture. Evolution of forms of commodification. Three year research project. First year looking at conceptual background. Second year looking at customary legal practices. (Like Martin’s work.) Third year hoping to host an international workshop – looking at comparative cultural aspects. New forms of franchise, user generated content, … Interested in Japanese and Korean use of franchise rights.
• Dispersed legal construction of rights associated with TV format. Empirical work is really valuable to see how important nominally peripheral legal practices are.
• Evolution of new paradigm of property. Protection operating at a much higher level of abstraction.
• Cultural development. Who we are, what we collectively place value on. Learnt to valourise creativity, innovation.
• Different from cult of personality. Original attraction to creative personality – able to be detached and attached to a whole plethora of different rights.
• Harry Potter as a kind of franchise. Fandom. Role of mass communications.
• E.g. with ‘Idol’ the brands are not ‘Idol’ but company behind it. Main customer not the viewer, but relatively small group at trade fairs.
• Most commercially valuable rights are not those related to fandom – but the passive forms of franchise such as merchandising.
• Computer animations, Disney on ice, retail stores, etc. All depend on characters.
• In 21st century not entirely clear what the primary asset is. Not book, script of a play, etc. It is the immaterial plot, characters, etc.
• IP + marketing pretend that artefact is still important. More extensive rights than fixed expression.
• Not driven by multinational greed or opportunism, but coming from the logic of the conditions of production. Marketing from the outset that drives decision making.
• Place significance on secondary products based on primary characters, plot, etc.
• Most retail have loose relationship with creativity. Most households with children have big array of random merchandise.
• In 1997 Microsoft took on Netscape. Browser wars. Attempt to have Star Trek content behind Microsoft firewall. Marginal legal arguments about interactions between fans.
• Right to own a fictional universe. What is protected is ambit and potential ambit of ideas. Not just the tales, but the series. Books were discrete tales, not a series. Many fans have not read all the books. Franchise mainly from film, not books. Books treated as secondary.
• Protection of artistic ouevre beyond individual literary works? Why can’t Dali and Breton ‘own’ surrealism. Why can’t Duchamp own the concept of the readymade? Similarly with Harry Potter as a conceptual universe. Major galleries are organised around central artists.
• Comes back to mass media point. Selling customers. Television networks, selling customers’ attention via advertising.
• New media and social networking. Role and importance of new media, social networking, etc. Assume more permissive legal practices. Attempts to control fan activity will put them off. This is a bit naive. Case study of viral marketing of Harry Potter produced by marketing department. Leaked and generated interest in theme park. Human interest stories of Harry Potter fans. Another version of Microsoft Star Trek deal – attempt to commercialise fans and fandom.
• Not arguing that there won’t be a re-alignment of IP category, nor that these won’t be important. More traditional forms of IP less important. New property of franchise is activity and relations with consumers.

Questions

• Q: Fan and creative culture. Franchise owns the material. Might say its marginal – but it is important. E.g. fan video games, which have been re-packaged and sold by Lucas Arts.
• A: Agreed.
• Q: Totalised entertainment concept. Can we any more make distinction between primary creative level and level of commodification?
• A: Think it is collapsing. Seeking investment has changed. Investigative journalism has changed. Celebrity authorship is primary commodity.
• Q: 25 years ago there used to be 5 biennale, now there are well over 300 biennales. Not enough work to fill the shelves. Strange aspect – huge focusing on opening. Opportunity to meet the artist. Different platforms. Is there a relation here?
• A: Similarity between the developments, though they are different phenomenon.
• Q: In Edinburgh J.K. Rowling cafe is now a tourist attraction! Poor author is important image for copyright.
• A: If you take author away there is no other referent. No other point.
• Q: Why not character?
• A: Author, character, play same function.

Peter Decherney (University of Pennsylvania) Gag Orders: Chaplin, Comedy, and Copyright

• Role of public shaming, community policing, etc.
• Copyright law failed to recognise vaudeville. Seemed to fall below the line. Interpreted to require writing – though many vaudeville performances were spectacles.
• How a French Nobleman Got a Wife Through the New York Herald Personal Columns, 1904, Edwin S. Porter.
• 1920s, main case is Charlie Caplin. Started in vaudeville, moved to film in 1910. Director, actor, distributor, scores, owned his own studios. Went fishing to find ideas in a lake or pond. Imitative genius. Originality came from his ability to mimic others.
• Charlie Chaplin lookalike competitions. [Photograph of 100s of children dressed up as Charlie Chaplin.]
• Bilie West is most successful Chaplin imitator. Laurel started out as Chaplin understudy. Harold Lloyd. Unlicensed Chaplin cartoons. Remixing of Chaplin films.
• First case against Chaplin mashup – argued Chaplin owned character. Court didn’t uphold argument about owning character, but did rule that advertising shouldn’t be deceptive.
• Difficulty in identifying what was original about his performance. Came up with nothing. Ineffable quality of Chaplin’s genius. Clip of film in decision as ‘no words could describe’.
• Not like later character copyright.
• Devices and costume used for centuries, court jesters, etc.
• Protecting audiences from being duped. Protecting reputation of famous comedians. Power of mass media.
• “Its the hat.” image – Hitler and Chaplin.
• When was participatory culture lost? When does it become piracy?

Questions

• Q: The protection of characters? Characters are on stage and on film…
• A: Not until 1950s when you see effective character copyright litigation. Confusion about lots of different kinds of copyright which became separated later. Character, reputation, personality, etc. Personality and persona of Chaplin. Different roles, different characters, but same image.
• Q: Is there a term for this?
• A: Star. Different character, but same star. Still Charlie Chaplin. Similar with Carey Grant. Retains ‘Carey Grant-ness’. Like John Wayne. Different characters but always the same.
• When Chaplin film was shown, auditorium was always full. When imitator, only half full. Audience was predominantly aware of distinction. Second tier of Chaplin imitators. Not negigible. Where Harold Lloyd was trained, where Laurel and Hardy were trained. Harold Lloyd looks like Chaplin for first dozen films. Only later when he develops his own appearance. Like painting. Old masters would study and imitate the great works before developing their own style.
• Q: The term used in the case?
• A: Character. But perhaps a less confusing term would be persona. Many different characters but same persona (as above). The type. E.g. ‘the tramp’. Function of mass media that same person can occupy many roles. Can Chaplin own ‘the tramp’? Can Breton own surrealism? Or rather, can a very late surrealist painter own surrealism? Difference between character and persona don’t exist in this period. Lots of legal distinctions we now have that didn’t exist then.
• Q: Difference between Chaplin’s time and now is that now there is a requirement that persona is consistent.
• A: Not sure difference is so great. Chaplin was romantic figure. Artistic reputation with cultural critics. Adorno loves Chaplin. Why? Becuase he met Chaplin in a party and he imitated him. Seeing Chaplin as coming from clown and vaudeville tradition which he surpasses.

Margaret Chon (University of Michigan Law School) Marks of Rectitude: Coda

• “Marks of rectitude” already published. Coda to this. Interrogation of own work.
• Marks of rectitude is about transformation of norms into law.
• Sustainability standards. Consumers and farmers. Ethical responses to global trade. Moral economy. Retailers and other suppliers.
• Culture as method. Want to avoid talking about legalistic mechanism. Talk about other aspects. Differentiation of products from each other. Competition with each other.
• How domestic schemes – certification marks connect to larger trade frameworks.
• International trade. Longer supply chains. Europeans think of GIs geographic identification. But less about locality. Longer supply chains. Increasing complexity of products. Increased division of labour. International organisations. ISO and its funny links with WTO.
• Global Legal Pluralism (forthcoming 2009). New normative. Actors (focus moves away from state), directions (away from top down forms of regulation), away from narrative of innovation and hard law.
• Actors. Industry associations, firms. (Global Gap. Starbucks, etc.) Public interest NGOs, individuals. Scholarship does not pay so much attention to these. Fair trade labelling organisation. Also states and international organisations.
• Who determines the meaning of the standard? Consumers, producers, certification mark holders, third party certifiers, others in the value chain (retailer, exporter, …), standard setting bodies, governments.
• Hard law (treaties) to soft law (non-binding but persuasive). Voluntary norms (FLO, fair trade, standards). Mandatory norms (ISO standards, Quality Assurance – QA, ..) Voluntary norms (TBT Article 2 standards), mandatory norms (technical..).
• Regime shifting. Tend to think of WIPO, WTO, etc. But would suggest that there is a much more distributed way of looking at governance. Multi-stakeholder or multi-interest governance. Historical examples. E.g. Jack Valenti in US. Standards setting organisations as standard setting entrepreneur.
• Certification is a largely invisible process. Arguably bottom up. But to what extent is there participation from, e.g. consumer groups.
• Domains/standards. Innovation/Open Source. Digital education/CC licenses. Climate change/Clean Development Mechanisms(CDMs). Public health/food safety. Human rights/social performance.
• Since 1980s proliferation of standards based on intangibles.
• Some of the labels for food and agricultural products. Consumers may not recognise many of the labels.
• Consumer confusion. Too much information.
• History of fair trade. 1946: Edna Ruth Byler (Akron). 1996: Craft of the world becomes Ten Thousand Villages. 1965: Oxfam schemes.
• International fairtrade certification standards. Fair trade/free trade.
• [Arabica Coffee Market Graph 1989-2007]
• FLO Generic Standards Flow Chart.
• Trader standards (pay minimum price, pay fairtrade premium, …). Hard to monitor.
• Comparison of environmental protection of Fairtrade Labelling Organisation (FLO), UTZ, Intelligentsia Coffee & Tea Company, Counter Culture Coffee. You may not care, but if you do its hard to find this information out.
• Comparison of labour standards, direct benefits to consumers.
• Fair trade has specific meaning.
• Basis for discussion or critique of other work. A lot of space for new regulatory entrepreneurs. No monopoly on regulation by the state. NGOs can get involved.
• Potential postitive: decentralised, grass roots (social movements, …), possible method of tech transfer, new export markets for South, possible check on abuses of outsourcing,…
• Potential negatives: Lots of different domains, ethical fig leaf (equality gap), accountability, transparency, quality?
• M. Polanyi, The Tacit Dimension. Tacit thought forms an indispensable part of all knowledge. Knowledge production and knowledge communities may or may not be transparent.
• Map out softer regulatory systems.
• Global legal pluralism and standards. Cover on ‘law’. Meidinger on ‘regulation’. Same kinds of arguments apply to standards?

Question

• Q: Marks reverse assignment of meaning. E.g. Coca Cola. Consumer assigns meaning. Certification marks are assigned by organisation. Point out that consumers assign meaning to standard marks. Organisation who gets to decide what mark means may be doing something else. Same symbol being assigned different meaning by different parties?
• A: This is one of the points I make in the original paper. The meaning of certification marks is very opaque. Standards don’t have marketing budget. Murkiness of meaning is attributable to lots of different things. Marks have different meanings for different groups simultaneously. Disjunction between understanding of what is going on in different part of supply chain – Milan and Madagascar.
• Q: Law and standards?
• A: Focus on ‘soft law’. Norms. They do structure relationships as effectively as laws do. Arguing for shift towards looking at soft law. But also maintain that the distinction is important.
• Q: What do you think about notion that mandatory corporate reporting is the site for explaining benefits to alleged beneficiaries. Corporate Social Justice literature says that corporate reporting is important.
• A: Different for different groups (corporations, non-profits, …).
• Q: Certification marks and geographical indicators. Similar scheme in Europe. GIs are supposed to have certain policy benefits. One of key issues here is whether there is a way of settling this. Benefits of increased price falls not to farmer but to wholesaler. Need to get empirical handle on governance of mark. Do we have a fundamentally flawed instrument?
• Q: Re: confusion of consumer, there was an idea that more choice will create more growth in market place. Less choice? Re: IP. Wall marks used as forerunner to this. Tacit knowledge as knowledge held in community. Turned into positive law. How that flow of knowledge operates. Crude version of how norms moves into concrete frameworks and back into tacit.
• Q: What is ‘culture as method’?
• A: International law compared to international relations. In IR it is focusing on non-state actors, person to person relationships. Borrowed concept and used in relation to international law, not only non-state actors, but also in relation to ‘hard law’.

Mario Biagioli (Harvard University) Nature and the Commons: The Vegetable Roots of Intellectual Property

• Read a shorter version of paper that has been posted on the ISHTIP site.
• Most frameworks to counter restraint of IP on research and so on depend on images of commons. Contrast between green imagery and technological infrastructure that researchers depend on.
• Advocates of CC frame their work as ‘opposite of IP’. James Boyle’s new book has dark tunnel, broken gate, beyond which are meadows and so on.
• Cultural environmentalism is analogy between commons and public domain and environment. Protection against excessive privatisation.
• But these metaphors are part of problems they are trying to cause. Use ends up reinforcing counter-productive binary opposition between nature and society.
• Second enclosure movement. Problem not so much with privatisation per se.
• Application of model of sustainable development to IP. Goes back to David Lang. ‘We used to think there were plenty of Buffalo – look now’. Framing IP in environmental terms.
• What is problem? Images of nature always been directly involved in creation narratives about property, especially intangible property. Going back to Locke.
• Those struggling with establishment of concept of literary property, depended on image of originality. Metaphors of land and organic growth. Agricultural growth as metaphor for literary growth. Agricultural logic of intellectual property.
• Edward Young’s Conjectures of 1759. One of birth places of modern copyright.
• Do not believe that flash of genius is accurate image of cultural production – but neither is other image.
• Young’s text suggests original works are of a vegetable nature. Original works are like vegetables, imitations are like artefacts. Original works grow but can not be made.
• Genius is external to human consciousness. Like oyster that doesn’t know it contains a pearl, or rock doesn’t know it contains a diamond. Genius is conscious. Hence is not an artefact. Unconscious, therefore not an artefact.
• Original compositions difference from imitative ones. He turns genius into a plant, or a face. Smart move as organisms of a species never look the same. You can be sure there will be some difference.
• Lines and features to characterise face and to distinguish it. It is unique. Produced by nature. Face analogous to plant as natural product.
• While face can be seen as emblem of personal expression – whereas in fact, according to logic of this argument, it is expressionless.
• Young can only illustrate invention with recourse to the vegetable – i.e. with recourse to discovery.
• Crucial difference between invention and discovery for patent law.
• Wording of patent law: “bred or discovered”, “invents or discover”.
• Footnote: same slippages can be found in GIs. Protected entity is mixture

Questions

• Q (Martha Woodmansee – MW): Methodological question. Young does not talk about intellectual property?
• A: He only mentions it in passing. Distinct future of authorship.
• Q (MW): I was very careful not to mention Young. Debate between ancients and moderns. You are doing interesting riffs, but not sure you would want to commit yourself to historical interpretation. His point of using that metaphor of plant, like Goethe, was that the plant dips into the earth and processes it (as Fichte says its own little brain), and produces something.
• A: That is originality. You have cast Young as main source of originality. Not reading text historically. Looking at discursive and logical tensions. Not even saying Young’s text important for the development of IP in England, as he wasn’t. Just picking out tensions.
• Q (MW): Wrote in 1982. One would hope that in interim that someone would read it non-anachronistically. What you are doing is riffing on it.
• A: That is called re-construction.
• Q: (MW) That is anachronism.
• Q: (Jamie Stapleton – JS) Understanding of commons metaphor. History comes from political history. Notion of enclosure. Common land. Economics concept called the tragedy of the commons. Publicly justified process within English parliament. William Foster Lloyd. Tragedy of commons in relation to population theory. Then picked up by Harding in 1960s as ecological metaphor. Not organic metaphor. Trying to draw rhetorical connection between people being thrown off land.
• A: If you read texts by cultural environmentalists they pick up on this discourse. They present themselves as fighting the same battle. When you apply to information it is different – intangible goods, nonrivalrous.
• Q (JS): But you play down political force of commons as a metaphor.
• A: Point taken.
• Q: Limits of metaphor.
• A: More sympathetic with cause than e.g. Elkin-Koren. Discourse is problematic. Branding their cause. Astute politics. Discourse is no longer critical in way it was in 1980s. No longer critical type of discourse – being replaced by sustainable development type approach, which means that you accept the rules of the game. Logic of discourse is problematic. Not reading Young’s text historically, reading it anachronistically. Exercise in reconstruction is to demonstrate that this way of thinking is problematic.
• Q: You ought to face nature/culture directly. Cultural environmentalists are not environmentalists. Commons folks don’t get what is at issue with traditional knowledge.
• Q: Organic metaphor – can this not be applied to law itself? Long term animation of plants? Transmission?
• A: Don’t believe that genius is a plant. Not that I want to say that it is not the romantic author it is the plant.

Rosemary J. Coombe (York University, Toronto) and Andrew Herman (Wilfrid Laurier University) Theories of Authorship, Ownership and Value in Networked Sociality

• Family photo posted on social networking sites ended up in billboard in Prague. They thought it was thrilling, flattering, perplexing and creepy.
• Facebook. More than 200 million active users. Mark Zuckerberg is core persona.
• Notion of performativity in cultural studies.
• Autonomism. Negri and immaterial labour.
• Produsage.org.
• IP discourse in web 2.0 masks how yet another example of corporate good will.
• Facebook new terms of service. Rights based discourse. Privacy. Pages of debate in emotionally laden and superfluous terms. Official response – Facebook’s goodwill.
• Hegel’s theory of property and its relation to personality.
• Legal subject is impoverished. Only capable of exchange, not of being a mother, lover or artist.
• Objectification of subjects and subjectification of objects. Inappropriate dignification of objects.
• ToS disputes are not rites of exchange, but about inalienable rights.
• Facebook’s ‘Statement of Rights and Responsibilities’.
• Facebook is primarily interested in persona – user generated intellectual property. Thats what make its sticky. Digital identity.
• Facebook Data Team. This is what allows them to sell attention to advertisers. LivingSocial.
• Microtargeting of advertising. Finely calculated economy of desire.

Questions

• Q: Two questions: (i) Characterises digital as an organic life. Recombinatory operators. Collapse of biological into inorganic. (ii) Hegel forefather of virtual sociology. Subjectivity is always vanishing and never achieved.
• A: (ii) Yes. Spent term reading Phenomenology of Spirit and never looked back. (i) Yes.
• Q (MW): Do you mean that those of us posting on Facebook are working for free?
• A: Yes.
• Q: Discourse of digital rights groups and privacy?
• A: Yes. One of dominant rhetorical tropes. As quickly turns to debate about rights, quickly individuates. Whole series of red herrings that keep emerging.
• Q: What is the main point?
• A: Information capital is based on pleasure of people sitting at their keyboards – providing ‘the good’ for free. Not new. What is new is the technological means are available to do this on a massive scale. Facebook is 7th biggest country. Hints of all kinds of things. People are stuggling for a new language with which to speak. Emergent communities. Social responsibilities are being obscured. Language of public responsibility. May be a form of ideological dispossession.

Concluding remarks

• Concluding remarks from Lionel Bently and Martha Woodmansee.
• ISHTIP: started in London. No funding so dependent on people’s effort.
• Process of building up websites. Would like to see links, bibliographies, primary sources, projects, teaching tools, syllabi, calendar of relevant events, discussion space and so on. Hoping that everyone will be able to post up on it.
• Hosted in Venice next year.
• What would people like to see?
• Hoped to have an annual workshop. Worried that it was going to be paper after paper. Turned into more of a workshop. Is it sufficiently workshop like? How can we make it more workshop like? Good length of time to discuss papers.
• Topics or themes?
• Bibliographies? Shaping tradition?
• Boot camps?
• Bringing in people from other regions to give papers? Requires funding.

Related Links

• Some photos on Flickr
• ISHTIP website
• ISHTIP 2009 programme
• Conference announcement at:
  • European Patent Office
  • Communia
  • IPBio Network
  • Cyberlaw Centre
  • madisonian.net

Johann George Hamann, “the Magus of the North”, was a minor civil servant working in tax administration, a Lutheran pietist, prolific lettrist, and polyglot. He is best known for his short, rhapsodic, densely allusive and often pseudonymous dispatches – on everything from erotic love to the importance of the letter ‘h’ – and for his influence on later figures such as Herder, Goethe, and Kierkegaard.

Lisa Marie Anderson (who translated Hegel’s essay on Hamann) organised an international conference, Hamann and the Tradition, which took place in March at Hunter College, New York:

Recent years have witnessed a resurgence of scholarly interest in the work of Johann Georg Hamann, an interest which is spreading among scholars of world literature, European history, philosophy, theology, and religious studies. New translations of work by and about Hamann are appearing, as are a number of books and articles on Hamann’s aesthetics, theories of language and sexuality, and unique place in Enlightenment and Counter-Enlightenment thought. As such, the time has come to reexamine, in light of recent work, the legacy of Hamann’s writings, which have influenced such diverse thinkers as J.G. von Herder, F.H. Jacobi, J.W. von Goethe, G.W.F. Hegel, Søren Kierkegaard, and Walter Benjamin, to name only an obvious few.

Hamann, Nietzsche and Wittgenstein on the language of philosophers

I gave a paper looking at some of Hamann’s allegations regarding how philosophers misuse and misunderstand language. It also examined how his work anticipates later claims to this effect – in particular those made by Nietzsche and Wittgenstein. The slides are available at:

• http://jonathangray.org/talks/20090321-hunter/

I am very grateful to the Conference of University Teachers of German in Great Britain and Ireland (CUTG) who awarded me a Postgraduate Travelling Scholarship to attend the conference.

Conference notes

Following are some partial, impressionistic notes from the conference. If you spot anything that you think should be amended, please get in touch! Full papers will be published in forthcoming conference proceedings.

John Betz, Reading Sibylline Leaves: Hamann in the History of Ideas

• After introductions from Lisa Marie Anderson and Saul Fisher the first talk was from John Betz, Assistant Professor of Theology, Loyola College, whose book on Hamann After Enlightenment: Hamann as Post-Secular Visionary was published last year.
• His paper looked at the reception and influence of Hamann’s work in the history of ideas.
• He alluded to Kierkegaard’s comment that Hamann was the “greatest humourist in Christendom” and discussed his influence on Hegel and Schelling – and his reception in the English speaking world via James O’Flaherty and Isaiah Berlin.
• He asked why Hamann is still relatively obscure, despite his huge influence on 19th century thinkers – and posited that the most obvious explanation is the difficulty of his style.
• Lessing: “I would not presume to understand Hamann in all respects”. If it was difficult for his contemporaries and immediate predecessors to understand him – it is much more difficult now, and this difficulty will only grow with time.
• In reaction to what he saw as an overblown confidence in reason – Hamann emphasised fallenness, and strove to expose the blind spots and dogmas of modern rationalism. He saw the German enlightenment of his day as a ‘cheap’ enlightenment.
• Early reviews of Hamann said that he was dark and impenetrable – that his allusions hung on his prose like ornaments. Hamann anonymously endorsed the ‘Hamburg review’, calling himself ‘dark, unintelligible, and deranged’.
• Hamann confessed to Herder that he was addicted to his cryptic style. But was he a bad writer? He was perfectly capable of limpid prose. Scattered throughout writings are succinct jewels.
• The next generation pored over them as oracles, worried for loss of his corpus. Hamann’s writings are powerful and strangely beautiful communications. Jean Paul said they were like ‘suns in patches of nebula’.
• Goethe admired Hamann’s novelty in this regard: the totality of his style.
• Light in darkness of Hamann’s style: the self understanding of a Christian author. Johannine light that shines in the darkness. Defies rational comprehension. Contains wisdom and power of God. His style is informed by his conversion. The form is Christological. Hamann is concentrated in a single word.
• So how did he make his way into the history of philosophy? This was delayed, mediated by Herder and Jacobi.
• Hamann introduced Kant to Hume and was an important influence on the critical turn of Kant’s philosophy. Questioned Kant’s critical philosophy. Emphasised that reason is product of tradition. Kant’s supposedly neutral critique is employed in service of prior political agenda.
• In some respects he anticipates Nietzsche.
• It is through Herder that Hamann reaches philosophy. Herder’s own Metacritique.
• Jacobi and Hamann: represent two very different strands – like Hegel and Kierkegaard.
• Hamann left a deep impression on Schelling. Schelling’s exploration of ‘relationship of plastic arts to nature’. Thanks Jabobi in a footnote for introducing him to Hamann. Urges him to publish an edition of Hamann’s writings. Schelling’s discovery of Hamann’s thought. Creation and revelation. Emphasis on passions – against Stoic tendency to denigrate them.
• Difference between Hamann and Fichte in their views of nature.
• The most important insight that Schelling picks up from Hamann: profound revelation. God who exceeds reason’s grasp.
• The long awaited first edition. 1828 – Hegel’s two part review. Translation by Lisa Marie Anderson.
• Lutheran faith. Theology based in feeling.
• Hegel’s opinion of Hamann is mixed. He admires him calling him ‘an original’ but criticised him for failing to develop his ideas into genuine system. Hamann’s work could only result in humour: self-satisfaction, subjectivity, triviality.
• Hegel fails to appreciate that Hamann’s prose is not self-centred. His writings are carefully crafted mirrors of introspection crafted for particular readers he has in mind.
• Hamann is utterly relevant to Hegel’s philosophy. But Hegel doesn’t mention Hamann’s work on the history/genealogy of reason. Or the kinosis of the divine logos.
• Hamann stands in background of whole of German idealism.
• Kierkegaard was the most important interpreter of Hamann after Hegel. Keenly appreciated that Hamann’s work was grounded in Christianity – and Hamann’s sense of humour.
• Examples of Hamann’s humour. His pseudonyms – e.g. ‘lover of boredom’. Anonymously reviewing his own pseudonymous works. Suggested the name ‘bathhouse quackeries’ for his collected works. Suggested the name ‘first little tub’ for the first volume.
• For Kierkegaard the Christian world view is essentially humorous. Liked Hamann’s naturally humorous sensibility, his appreciation of genius, and so on. Said that Hamann was ‘the greatest humorist in the world’.
• Later Kierkegaard turns away from this view – detecting a noble pride behind folly. He was troubled by Hamann’s humour. Why? Hamann seeks truth in the world, in the sensible, in the sinful. Kierkegaard thinks Hamann goes too far – indulging irony to the extent of blasphemy.
• However one judges Hamann – his importance should be clear. He was by no means an irrationalist. The great luminaries of the age found him alluring.
• What was content of message? It is impossible to reduce his work to any one particular thought.
• To Kant he introduced Hume. To Herder and Hegel he indicated reason’s historical and linguistic basis. For Goethe he pointed towards a German literature away from French literature. To Jacobi he points beyond nihilism. To Hegel and Schelling he pointed to new and grander possibilities of philosophy. To Kierkegaard he gave pseudonymous authorship, the notion of indirect communication and the infinite difference between the human and the divine.

Questions

• Did Hamann craft his style? For Hamann writing was like digestion. He used all his senses. Laborious and experimental. Deep silence some days, then burst out. We know about how he developed his writings as there are several versions of things he has written. He was a big letter writer. Not so much lyrical outpourings as very carefully crafted pieces.
• Question about the general project of drawing parallels between Hamann and other thinkers. Apart from small mentions here and there, how far can we get in playing this kind of game? If we identify themes – we have something. Identify themes in Hamann, regardless of the extent to which people allude to him. At a certain level this remains very general – and must remain so. Subterranean. Hamann was like a dark centre of gravity – attracting other things, but remaining unseen. He was like a black hole – a powerful but invisible field.
• But when it comes to textual connections, do we get citations of Hamann? Gwen Griffith Dickson: following on from that, he did all these pseudonymous writings. Readers are affected and internalise insights in Hamann. Not so much that there are concrete chunks you can lift out. Makes harder to cite quotations. Point taken but would argue that influence was much more internalised than fragments that can be quoted.
• Hence, how far can we go vis a vis intellectual history? Another form of German philosophy. Sense of humour. Against big system builders.
• How would you recover Hamann’s response to reconstructions? E.g. Jacobi/Kierkegaard. Logical extension of reason is nihilism. Ultimately concerned with faith, with heart. Not about a big system. More Socratic.
• What is reason for Hamann? What is faith for Hamann? Light of revelation appropriated. So basically classic.
• Hamann affecting Goethe’s theory of nature? Hamann certainly has notion of recovery of nature. Hamann is no Spinozist – and Goethe is a professed Spinozist. Possible influence through Princess Gallitzin – who Goethe knew.

Gwen Griffith Dickson, God, I & Thou: Hamann and the Personalist Tradition

• Next talk from Gwen Griffith Dickson, author of Johann Georg Hamann’s Relational Metacriticism, Director at Lokahi Foundation, Visiting Professor at King’s College London and Emeritus Gresham Professor of Divinity.
• Gwen specialises in philosophies and theologies of different faiths. Wonderful thing to have Hamann conference in US.
• Core of the thesis in a few sentences, which will be expanded. Like speed dating, if you don’t fancy it you can nod off.
• Hamann’s picture of the human being. Human beings are fundamentally related to others (humans and god). Part of a fundamental ontology. Relational ontology – from sexuality to textuality. Above all seen in phenomenon of language.
• These particular ideas about language come into their own in 20th century. First part of talk will be about Hamann and the second part about other thinkers.
• Approach to understanding human person. Language and the divine. Relationships and relatedness are fundamental features of our being. We are created for and by our relationships.
• Area treated by philosophers. Self-knowledge. In order to make easier knowledge of own self – my own self is reflected in every neighbour. God and my neighbour are part of self knowledge/self love.
• Socrates via St. Paul. Self knowledge comes from being known by another. Divine other – being known by god is ground of self knowledge.
• Sibyl. Self knowledge only came through love, sexual knowledge, knowledge of another. Principle remains: self knowledge through other
• Socratic Memorabilia: midwife/sculptor. Aesthetica in Nuce: self knowledge through tradition. Revelation and tradition.
• Hamann: human nature consists of gaps and lacks. Gaps and lacks demonstrate inter-dependence. Relates us to nature and one another.
• Flurry of metaphors – knowledge as promiscuity. Truth defending herself against highwaymen.
• Knowledge less epistemological mechanics than ethics. Principal vocation of epistemic nature. Encounter with Hume.
• Pure idealism to separate feeling from thinking. Companionship. Things without relations, relations without things.
• Testimony of sense convinces neither rationalist nor sceptic. Knowledge/faith rest on foundation of trust, not indubitability. Both are perpetually provisional and contain contradictions. Our knowledge is piecemeal. Through reason skepsis itself becomes dogma.
• Language is not a system of universal signs, but images. Images – later formal abstraction. To trade in abstraction is to deal a death blow to true language.
• Hamann introduces critical aspect – against Herder’s close association of language and instinct.
• Relation of language to thought and reason. Language and philosophy are grounded in tradition – community in its temporal aspect. Relationship with nature and relationship with author of nature. Easy exchange between human and divine. Reasoning relates us to God.
• God, relation and reason = light, eye, what the eye sees = text, author, reader.
• Unbridgeable chasm between us and god is replaced with easy intimacy. Because of God’s grace and compassion.
• Language arises on God’s side to address his children and on human side to understand God’s address. To facilitate relationship.
• Fast forward to personalists, philosophers of encounter: Martin Buber, Ferdinand Ebner, Franz Rosenzweig, …
• Salient features: human person cannot be viewed in isolation, being is constituted by relationships.
• Buber in I & Thou. Entering relations with other persons. Rejection of essence or substance as philosophical categories. ‘In the beginning is relation’.
• Rosenzweig. Only scholastic reason divides itself – contradicts its unity.
• Opened his mouth: became human being. In and through language that we are human. ‘I speak therefore I am’ or ‘I am spoken to therefore I become’.
• Theological significance. Mere existence of human other reveals existence of divine other. From experience of meeting another.
• All these thinkers confess a powerful dependence on Hamann. Hamann’s reaction to these thinkers may be like his reaction to Herder and Jacobi. They absorb something but also miss something.
• Anecdote of Picasso and Braque hanging a picture and asking: do her armpits smell? In Ebner there are no smelly armpits whereas in Hamann there are lots. Better stop the metaphor.
• Relationship with divine is constituted in language.

Lori Yamato, Hamann’s Fables of Dismemberment

• Fables of dismemberment. Role of the fable in the 18th century.
• Enigmatic contribution. Hamann’s comments on fables are indirect contributions to direct comments. Protests categorisation of fable.
• Lessing takes up legend of Tarquinius. He looks at action, not narrative.
• Hamann is also very keen on legend. Brings back literary aspect of fable – rather than using it as an illustration. Features in Aesthetica in nuce.
• Book on the way crusaders constructed labyrinths.
• Story without set moral – allowable for any usage. Symbolic story that admits interpretation – moral – but also an enigma. Story in its brevity. Acts in similar manner to Nuce. Little piece that is supposed to sprout.
• Playfulness – beheading flowers and the decapitation of citizens.
• ‘[The rhapsodist] has with the petit-maîtres and sophmores of his time written ******** and ——— obelisks and asterisks.’
• Footnoting and marginalia gets dragged out into page. Distinction between obelisks and asterisks is not so important? Dashes, obelisks, asterisks are cuts, daggers and stitches.
• Disjecti membra poetae has become a common phrase. In Horace, Satires, I.iv.56-62. Come to mean ‘scattered fragments’, but Hamann re-introduces a macabre connotation.

Kamaal Haque, Hamann, Goethe and the West-östlicher Divan

• Kamaal is Visiting Assistant Professor at Dickinson College.
• Goethe’s admiration for Hamann. Notion of unity.
• Goethe’s West-östlicher Divan. Collection of poems.
• End of Hamann’s Cloverleaf of Hellenistic Letters. Misri Effendi and the Mufti. Misri was accused of secretly harbouring Christian thoughts.
• Aesthetica in Nuce – “by making pilgrimages to Arabia ..”
• Henkel on Goethe and Hamann.
• Superiority of Ancient East to Classical West. Greece is relegated to forming sculpture. Eastern poet can create poems out of water, dynamic poetry.
• In part an attack on Michaelis. Arbitrary convention of human language. Hamann and Herder on language.
• In a 1823 essay Goethe states: ‘motifs, legend, ancient stories, impressed upon me that I kept them in my mind’. Aesthetica in Nuce is one of those works that he kept in his mind.

Katie Terezakis, Is Theology Possible After Hamann?

• Katie is Assistant Professor at Rochester Institute of Technology and author of Immanent Word: The Turn to Language in German Philosophy, 1759-1801.
• If theology is writing about God, then Hamann is writing about theology. Hamann denies that he is doing theology – which he says is hubris. If Hamann says his work is not theological – can his work be appropriated by theology?
• Characteristic of Hamann to take theological notions seriously as a point of departure for epistemology.
• Self-limitation. We can say nothing about what motivates or exists before self-limitation.
• How can our claims to knowledge be established? Hamann challenges the ground of any theory of knowledge.
• Hegel’s system attempts to integrate Hamann’s metacritical position.
• The possibility of theology.
• Kant inappropriately flushes out contingencies from reason.
• Language is shared root of sensibility and intuition. Language’s credentials are tradition and usage.
• Turn to language is the distinguishing theme of Hamannian authorship.
• Primacy of language. Any attempt to transcend linguistic traditions can only revert back to these traditions. Any formal system attempting to act as a metalanguage will fail.
• Hamann not only rejects theology, but says all God talk is just talk. We will find with certainty only a reflection of ourselves. We can’t know from what being has been translated to appear to us as it does.
• Three different types of theology: traditional theology, negative theology, radical orthodoxy. Not making claim that these are exhaustive, nor chosing them just because they allude to Hamann.
• Radical orthodoxy – John Milbank, very detailed reading. Interest in Hamann stems from his critique of philosophy. Dualism of reason and revelation.
• Linguisticality of reason, existence before essence. Looks as though assimilated within philosophical tradition.
• Hamann tackles dependence of his thought on language.
• One does need faith to eat an egg.
• Cognitive instinct.
• Analogy and regulative positing.
• Hamann has difficulty with Kant’s claims of certainty for moral law.
• When metaphors do their work, they achieve condescension. Multitude of meanings condensed into single image.
• Language is root between beings and being.
• Hamann’s sensuousness, tradition, desire.
• Milbank rejects Hamann’s notion of the regulative based on his own theological conservatism.
• Hamann learns, following Hume, that one can never know absent things or connection between things.
• Nihilism is result of independent secular reason reserving a space apart from God. Grounding disciplines on nothing. Transcendental categories are illusion thrown up by the void. In Hamann there is no void – hence no need for defensive posturing against nihilism. Milbank repeats cliche about Ding-an-Sich.
• Hamann read Kant more carefully. Regulative as act of human freedom.
• Though Hamann ruthlessly challenges Kant’s certainty, and argues for linguistic bases of reasoning. Deepens thrust of critical project.
• Radical Orthodoxy urges us not to reserve space outside of theology.
• Mediating participatory sphere – led by knowers, elite class of mediators.
• Milbank on radical orthodoxy: “a project made possible by the self conscious superficiality of today’s secularism”. He says the “nihilistic drift of postmodernism is unprecendented opportunity”. But far from being radical it is reactionary and ultraconservative.
• If Hamann candidly rejects theology – how can we explain his allusion to the theological? Revelation happens in and through tradition and language. Brash humility and demanding epistemic constraint.

Oswald Bayer, God as Author: The Theological Foundation of Hamann’s Autorpoetik

• Dr. Oswald Bayer is Professor of Systematic Theology & Philosophy of Religion, Universität Tübingen, author of Vernunft ist Sprache: Hamanns Metakritik Kants, and co-editor of a book of Hamann’s Londoner Schriften.
• What is it in Homer that makes up for ignorance of Aristotle? Or Shakespeare’s transgression of critical laws? Genius!
• Forerunner of romanticism and Strum und Drang.
• Freedom of genius is creative genius. Structured genius.
• Authorial poetics is theologically grounded.
• God himself is an author!
• Learning by suffering. Genius is a crown of thorns.
• Compelled to name the animals – contradiction to Platonic idea of preformed.
• Hamann was acquainted with notion of mimesis.
• Hamann expresses his authorship in three classic passages.
• Aesthetica: analogy of human being with creator… divine seal, that we are his offspring.
• Philological Ideas and Doubts: political animal – human stands in relation to animals like prince to subjects
• Aside: ‘This theology is given to me. It is a sign of the divine. It is given. This passivity.’
• Misuse of language and its natural testimony is perjury.
• Authorial poetics.
• Kierkegaard’s concept of indirect communication. Continuity that obtains within.
• Hamann expreses importance of self knowledge from early writings and continues to do so throughout his authorship.
• Deep fountain of truth that resides in the spirit.
• ‘Speak that I may see you’
• Authorial poetics of human beings. Authorship of God himself.
• Analogy of human and divine: invisibility of man and God only becomes visible in the world.
• Only communicated in speaking and writing in space and time.
• Human life seems to consist in a series of symbolical actions …
• Sturm und Drang could see this as a manifesto.
• Faculty of judgement arising from the head and the heart.
• Hamann’s unique concept of style in way he understands style of God himself.
• God’s style remains for Hamann the only style, and God the only truly original author.
• Authorial poetics – recognises it in gratitude and not embarrassment.
• Brides from virgins, authors from readers.
• Idea of reader is author’s muse.
• Could Hamann could be described as a postmodern thinker? Though on face of it is an anachronism. Masks, collage, allusion – alienating effect.
• On the one hand Hamann ensures distance between author and reader. Also avoids either/or with respect to authorship.
• One would also have to point out embodiment, senses, incorporality.
• Hamann’s Metacritique of modernity. Nachprüfung – re-examination. Also pre-modern. Hamann is both author and reviewer, both creative writer and art critic.

Kenneth Haynes, Tradition and Testimony in Hamann

• Kenneth Haynes is Associate Professor of Comparative Literature and Classics at Brown University and editor of Hamann: Writings on Philosophy and Language on Cambridge University Press.
• Kierkegaard quote about ‘poor Hamann’: “With all his life and soul, to the last drop of blood, he is concentrated in a single word, the passionate protest of a highly gifted genius against an existential system. But the System is hospitable; poor Hamann, you have been reduced to a paragraph by Michelet. Whether any monument has ever marked your grave, I do not know; whether it is now trodden under foot, I do not know; but this I know, that you have been with satanic might and main forced into the paragraph-uniform, and stuck into the ranks.” (Kierkegaard, Concluding Unscientific Postscript (1846), trans. Swenson and Lowrie).
• Talk will look at how Hamann was incorporated into history of philosophy. His reception in textbooks, history, lectures. Reception history.
• Rift between 18th century philosophy and subsequent histories. Hamann shared reception fate of other 18th century writers.
• Michelet – Hegelian philosopher and historian of philosophy.
• Parallels between ‘poor Hamann’ and ‘poor Jacobi’ (“Poor Jacobi! Whether anyone visits your grave I do not know, …”). Hamann assimilated to Jacobi. Hamann is a kind of Jacobi with a weirder style.
• Intense personal/philosophical encounters and history of philosophy.
• Mentioned in 1846 by Kierkegaard in Concluding Unscientific Postscript.
• After 19th century see him linked with Herder (Dilthey …).
• History of philosophy used to served anti-Enlightment ends.
• Hamann polemically described as unique expression of the German spirit.
• Herman Nohl – student of Dilthey – ‘most irrational man that ever lived’ (compliment).
• Rudolph Unger – counter enlightenment polemic.
• Berlin drew on Nohl.
• Why study historiography of philosophy?
• Natural bent towards reception history.
• To count as philosophy means you have to have a place in the history of philosophy. In past you have to insert yourself into master/disciple relationship – a sect. If not you would be an isolate.
• Hamann rather than being failed resistance, turns out to be prophet of true resistance.
• History of philosophy has a history. Bibliographical work.
• Brooker – canon for 19th century.
• History of philosophy as gradual development of reason. Scepticism is engine that drives philosophy through development.
• “Manual of the history of philosophy”.
• Reconstructive and logical history.
• Retrospectively evaluating philosophers – how far did they succeed in reacting to scepticism.
• Hamann shows up in 5th edition – linked to Jacobi.
• Wit and wisdom of Hamann. Sloppy historian.
• Philosophical histories of Schelling and Hegel.
• For Hegel recent German philosophy depends on Jacobi.
• Hamann’s absence noticable since Hegel gives Hamann has such detailed treatment later.
• 1833-34. Hamann gets 3 paragraphs.
• Evoked along with Pascal as isolated figure.
• 5th edition of Tenemann’s manuel – Michelet.
• Took over lectures upon Hegel’s death. History of latest philosophy in Germany.
• Michelet does a bettter job as an encyclopedist than as a philosopher.
• Danger for distortion comes from with what Michelet takes for granted.
• Hamann, Herder, and Jacobi (counter-enlightenment). Michelet’s 1837 edition of The History of the Latest System of Philosophy in Germany from Kant to Hegel mentions them together under Glaubensphilosophie – ‘faith-philosophy’.
• The term ‘faith-philosophy’ applied to Jacobi and others – but doesn’t seem to appear in Jacobi or very much in 18th century.
• Irrationalist mystics and faith-philosophers.
• Projection of German Idealism on 18th century.
• ‘Subject-centred epistemology’ doesn’t work for Hamann.
• Unbelief and superstition.
• Further distortions: Seeing trio as trio (Hamann, Herder, Jacobi). They disagreed more often than they agreed. Trio as nationalist claim. Schelling has chapter on this. Michelet says they unify Prussian state.
• “The stamina and the menstrua of our reason are thus in the truest understanding revelations and traditions which we accept as our property, transform into our fluids and powers…” (Philological ideas and doubts)
• “Is all your human reason anything other than tradition and inheritance…” (New apology of the letter h)
• “It all comes down to tradition in the end, as all abstractions to sense impressions.” (letter to Herder, April 20, 1782)

Manfred Kuehn, Hamann on Reason, Hume, and Kant

• Manfred Kuehn is Professor of Philosophy at Boston University.
• Hamann on reason, Hume and Kant.
• Kant’s notion of ‘good will’ is just as questionable as ‘pure reason’.
• No extended discussion in Hamann that would treat ‘good will’ in the same way that he treats ‘pure reason’.
• No extended metacritique of critique of practical reason.
• He was ill and died before he could write it, but it is doubtful if he would have written it if he did.
• Hamann took interest in literary feuds (his main distraction, like TV).
• He speaks of another chimera – ‘good will’.
• Language is at root of moral concepts. Morality is nothing but syntax. Correct language is a fundamental feauture of ethics.
• Deeds are more important than maxims.
• Hamann is accused of being an egoist.
• Hamann anticipates Hegel’s critique of Kant.
• Kant is one of our sharpest minds – but his acuity is as evil demon.
• Kant’s moral philosophy is not essentially different from Mendelssohn, Lessing, …
• Very different from the way Kant is usually seen. Most think Kant’s moral philosophy is a radical departure from all that went before. Hamann indicates that this isn’t the case. Kant’s moral philosophy must be seen as the continuation of a tradition.
• Hamann must have thought that he criticised Kant’s moral philosophy in critique of Berlin enlightenment.
• Mendelssohn – rights based account. Kant – duty based account.
• No inner dignity in our nature.
• Idea that maxims could be conceived of as containing virtue by means of categorical imperative is flawed.
• There are no necessary truths of reason. Just rational beliefs.
• Hamann approvingly cites Herder.
• Did Kant or Mendelssohn hate Christianity?
• Open intolerance for concealed intolerance of Enlightenment.
• Successfully creates alternative to Enlightenment.
• His alternative became irrelevant to philosophers.

Johannes von Lüpke, Metaphysics and Metacritique. Hamann’s Understanding of the Word of God in the Tradition of Lutheran Theology

• Dr. Johannes von Lüpke is Professor for Systematic Theology at Kirchliche Hochschule Wuppertal.
• Metaphysics and metacritique in tradition of Luther.
• Concept of metacritique – invention of Hamann. In response to Kant.
• 7th July 1782 – first appearance of term in letter from Hamann to Herder. Then brought into philosophical discourse primarily by Herder.
• Commonly used when first level critique is subject to second level critique. Hence critique of critique.
• Hamann’s goes beyond this. Hamann’s conception is claim of theological truth. Both analogy and antithesis.
• Hamann in tradition of Martin Luther’s theology.
• Hamann re-iterates a critique of metaphysics.
• God’s perfectness based on word.
• Luther did not condemn philosophy along metaphysical preconceptions.
• Reformatory theology perceives tensions in this relationship – and seeks to enlighten reason by light of word of God.
• Contrasts message of God with God’s first translation.
• Athens and Jerusalem.
• Last sheets commemorates Pascal’s last memorial.
• Reason starts to idolise itself.
• Misses true God who descends to lowliness of his creation. God at beginning of sentence. Underlines God as an individual. God discloses himself in human language.
• Agreements between Hamann and Luther. Both are theologians of the cross. Challenge wisdom of world with foolishness of the cross. True relationship between God and man. Cross is place where reason is judged and ordered.
• Luther: without God best things used as worst. Hamann applies this to language
• Reason and commandments are God given assistance for mankind. Both reason and law can be corrupted and can become corrupted.
• Hamann’s goal is to point out the inner lies and contradictions.
• Theologians recognise reality of God, mankind and the cross.
• Hamann aims at realism that restores correct relationship between God and mankind.
• Hamann is not against reason, but he tries to restore true relational reason.
• Make use of reason. Reason knows nothing but the law.
• Reason connected with law is supposed to enable to great things – science, technology and art. But gives nothing but that which is earthly.
• In order to witness reality of God and God’s action in and with his creation.
• Different kind of word, different kind of reason required.
• Reason requires enlightenment by light of gospel.
• Supreme individual reality of God – only possible by listening to his word.
• Not enthusiasm (sturmerei).
• Metacritical enlightenment of reason.
• Reason itself is aware of limited scope of its methods.
• This can only succeed in comprehensive understanding if perceives word of God.

Concluding remarks

• First Hamann conference in US. Next Internationales Hamann-Kolloquium will take place in Halle.

Related links

• Some photographs on Flickr
• Official Conference Programme
• CFP and announcement on Self and World blog
• Announcement on Continental Philosophy blog
• Conference report from Michael Larson