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By Root 2196 0

same departure of creative authorship to new projects and identities underlies the anxieties of each. In each case new realms of creative work can be accommodated into the existing system, but doing so involves ad hoc compromises and creates increasingly stark inconsistencies. At some point the resulting contraption comes to resemble too clearly for comfort Thomas Kuhn's famous portrayal of a "crisis" state in the sciences. In intellectual property, as in the disciplines at large, a reengagement with history is likely to play a central role in shaping the transformation that such a crisis entails.29 Indeed, this book has shown how revisions of history have already proved a notable feature of all major transitions in intellectual property thus far, from the invention of piracy through that of intellectual property. New accounts of the digital and biotech revolutions - along with revisionist interpretations of the Gutenberg revolutionherald another. Rather than adducing a discrete "culture" defined by each given technology, they portray a practical, dynamic, and continuous interlacing of technologies and society. They furnish a kind of understanding that could underpin a revision of the proper relation between creativity and commerce.

A reformation of creative rights, responsibilities, and privileges could therefore occur in reaction to a crisis in intellectual property. It could rest on quite different distinctions from that between literary and mechanical fields which has obtained for centuries as fundamental to what we call intellectual property. It might adopt as axiomatic the distinction between digital and analogue, for example, for it is arguable that the act of copying is distinct in the two realms. Or it could embrace a more radical form of reticulation, recognizing multiple categories-genetic, digital, algorithmic, inscribed, and more-rather than a binomial pair. Either way, it would also include the historicity of the distinctions on which it does come to be built. At present we have a system that is conceptually simple, in that it is professedly based on a small number of ideal premises that are impervious to historical change. But it is hopelessly complex in practice, because the everyday life of creativity and commerce is historical. A reticulated system would be more complex in theory, because it would require more premises. But in use it might be simpler, because it could hug the contours of creative life more closely. The change, in sum, would be profound. Not everythingwe attribute to intellectual propertywould be jettisoned. It might even be said that intellectual property itself had been saved. After all, such property benefits those who create opinions, so the opinions that are created will tend to return the favor-a cynical way to put it, but Henry Carey did so in the nineteenth century, andArnold Plant agreed in the twentieth. Yet in truth it would have been radically reconceived. Intellectual property in its high-modern form would no longer exist.

All of this is admittedly speculative. But it is not intrinsically implausible. Intellectual property has always been a dynamic compromise between the local and the universal, and between practice and principle. At the time of writing it seems to increasing numbers of people that the balance is set to shift. The long ascendancy of the universal may be coming to an end. Assumptions that had seemed secure and unquestionable are all of a sudden doubtful again. As this happens, many are the possible trajectories on offer, and most are backed by their own zealous adherents. There are not many guides to help us choose the best. It is in our interest to make use of past experience as one tool. We should look again at the variety of convictions that our ancestors held, the arguments they advanced, the actions they took, and the results they experienced. To be sure, history cannot tell us exactly what to do, or what choices to make. The responsibility for those decisions will be ours alone. But the time to take the decisions is surely coming. History can help us