Working Knowledge

Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800-1930

Catherine L. Fisk
Copyright Date: 2009
Pages: 376
https://www.jstor.org/stable/10.5149/9780807899069_fisk
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  • Book Info
    Working Knowledge
    Book Description:

    Skilled workers of the early nineteenth century enjoyed a degree of professional independence because workplace knowledge and technical skill were their "property," or at least their attribute. In most sectors of today's economy, however, it is a foundational and widely accepted truth that businesses retain legal ownership of employee-generated intellectual property.InWorking Knowledge, Catherine Fisk chronicles the legal and social transformations that led to the transfer of ownership of employee innovation from labor to management. This deeply contested development was won at the expense of workers' entrepreneurial independence and ultimately, Fisk argues, economic democracy.By reviewing judicial decisions and legal scholarship on all aspects of employee-generated intellectual property and combing the archives of major nineteenth-century intellectual property-producing companies--including DuPont, Rand McNally, and the American Tobacco Company--Fisk makes a highly technical area of law accessible to general readers while also addressing scholarly deficiencies in the histories of labor, intellectual property, and the business of technology.

    eISBN: 978-1-4696-0533-3
    Subjects: Law, Business

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. ACKNOWLEDGMENTS
    (pp. ix-xii)
  4. INTRODUCTION
    (pp. 1-18)

    A foundation of the modern intellectual property regime, and of the business strategy of innovative firms throughout the economy, is the right of firms to the intellectual property produced by their employees. Today’s corporate employer typically insists on contracts claiming the copyrights and patents to works produced both during and after a term of employment by employees and independent contractors. In addition, under the law of trade secrets, firms control current and former employees’ use of a wide range of unpatented information, and employers can buttress the protection offered by trade secret law through a noncompete or nondisclosure agreement preventing...

  5. PART I WORKPLACE KNOWLEDGE AS A PERSONAL ATTRIBUTE, 1800–1860
    (pp. 19-22)

    At the turn of the nineteenth century, the United States was a predominantly agricultural economy with little manufacturing. Most people worked in household or small-scale family or kin-based enterprises. Mainly they worked on farms, but some worked in town or village households, making things for their own use or for trade or sale on a small scale. The typical manufacturer was a master artisan or mill proprietor and the typical manufacturing workplace was a room or rooms in the artisan’s home or in a small building. The typical manufacturing employee was a handicraft worker. Businesses were very small, involving the...

  6. 1 Stealing in the Dark the Improvements of Others
    (pp. 23-58)

    In 1808, the Wilmington, Delaware, powder manufactory of E. I. du Pont de Nemours & Company was a sophisticated operation by the standards of American explosives manufacturing of the day. On account of its founders’ superior knowledge of the chemistry of gunpowder and its employees’ careful development of techniques for its composition, the firm had established a favorable position in the market even in the six short years of its operation. The employees’ know-how was one of the firm’s most precious assets. When a competing powder maker sought to recruit Du Pont workers to learn from them the company’s techniques,...

  7. 2 The Genius Which Conceived and the Toil Which Compiled the Book
    (pp. 59-74)

    Just as both patents and unpatented workplace knowledge were regarded as an asset of skilled labor, so too did antebellum law treat copyrights as the property of the individual author regardless of whether the work was created for hire. Although employee-authors, like authors everywhere for centuries, routinely assigned their copyrights to those who would pay for them (including their employers), the law required there to be an express assignment of the copyright before it would divest an author of the right to his work over his objection. Judges found very good philosophical and economic reasons for this rule, at least...

  8. PART II FREE LABOR, FREE ENTERPRISE, AND THE FREEDOM TO CONTRACT OVER INNOVATION, 1860–1895
    (pp. 75-86)

    In the years bracketing the Civil War, much changed in American law and society. The agrarian republic imagined by Jefferson disappeared with early industrialization and the rise of commerce in the North. The “market revolution” that began in the Jacksonian era—the growth of commerce within the settled East and the expansion of commerce into the fast-growing West—opened up new opportunities for entrepreneurship through inventing, manufacturing, and selling. Factory production developed, first in textiles and armaments in New England, and then in clocks and other goods. The construction of roads, canals, and railroads opened up new possibilities for commerce...

  9. 3 If These Mill Owners Desire to Cripple a Man’s Enterprise and His Energy and Intelligence, They Must Contract to That Effect
    (pp. 87-107)

    By 1860, industrialization had transformed England and was making serious headway in the United States. The transformation was both material and cultural. The Crystal Palace Exhibition of 1851 showed the British public, and the many visitors and exhibitors from America, the marvels of modern technology that would affect every aspect of modern life, but especially work. The displays featured not only the genius of great inventors but also the accomplishments of firms. It offered the public a way to associate innovation with companies rather than just with individual inventors. And the complexity of the technology exhibited drove home the idea...

  10. 4 An Ingenious Man Enabled by Contract
    (pp. 108-136)

    Just as the law and culture of the workplace in the early postbellum years embraced worker control of craft and mechanical knowledge as part of the antimonopoly conception of entrepreneurship, so too did the law and culture of patenting. In 1860, the law presumed that the inventor should own his patents unless or until he assigned or licensed them to others. Leading thinkers on American political economy from Hamilton to Lincoln viewed technological development as crucial to American progress, and the patent system was widely believed to be integral to it. The general faith in patenting and technology included a...

  11. 5 They Claim to Own Him, Body and Soul
    (pp. 137-172)

    Popular entertainment looms large in the nineteenth-century picture of contractual allocations of employees’ creative output. It was one of the few areas where creative people worked as employees (rather than for themselves) and where the results were sufficiently valuable commercially to make it sensible to litigate over ownership. This was an area in which courts most explicitly and self-consciously considered the line between the inalienable traits of human personality and the commodified knowledge and talent that could be sold through a contract of employment.

    Litigation over control of the talent of singers, actors, writers, and others in popular entertainment from...

  12. PART III WORKPLACE KNOWLEDGE AS CORPORATE INTELLECTUAL PROPERTY, 1895–1930
    (pp. 173-176)

    The modern law of corporate intellectual property was created during the same span of years that produced both the archetypes of reactionary legal conservatism and the probing critiques of law that laid the foundations of modern progressive legal thinking. These were the years of what Owen Fiss called, in his history of the Fuller Court (1888–1910), “the negative examples” —the cases that live in infamy among modern progressive lawyers for their heartlessness and racism:Lochner v. New York(which invalidated protective labor legislation);Plessy v. Ferguson(which approved racial segregation);In re Debs(which gave the president the power...

  13. 6 Corporate Management of Science and Scientific Management of Corporations
    (pp. 177-210)

    Many large corporations established research and development facilities in the first decade of the twentieth century to systematize invention. Innovations became more likely to be made in a research lab or in some other collective setting by someone working as an employee of a corporation. At the same time, large businesses adopted the methods of scientific management. They restructured jobs so that complex tasks were divided up and performed piecemeal by less-skilled workers, they rationalized production so that supervisors rather than skilled labor and foremen controlled the manufacturing process, and they improved record keeping so that the productivity (and therefore...

  14. 7 The Corporation’s Money Paid for the Painting; Its Artist Colored It; Its President Designed It
    (pp. 211-239)

    Inventors and authors have long been imagined to be individual humans because originality and creativity are imagined to be uniquely human attributes. As patent and copyright law came to recognize the validity of corporate intellectual property in the twentieth century, courts and legislators had to reconsider the relation between the creative employee and the corporate employer. In the burgeoning twentieth-century market for intellectual property as consumer goods, firms used the names of individual creators as markers of quality or authenticity to brand their products even as the commercialization of the production of art and books demanded corporate control of intellectual...

  15. CONCLUSION. Attribution, Authenticity, & the Corporate Production of Technology and Culture
    (pp. 240-256)

    The growth of corporations and the rapid spread of office and factory work significantly changed the application of legal rules regarding intellectual property ownership. As is always the case with law, the changing applications ultimately changed the rules themselves. As the settings in which ideas were manufactured became more “corporate”—more bureaucratic, more collective, and, quite literally, under the aegis of corporations—and as the claimants to idea ownership increasingly were corporations, what judges thought of idea ownership and how firms managed creative employees changed too. Judges came to believe that people learned workplace skills in large offices and factories...

  16. NOTES
    (pp. 257-310)
  17. BIBLIOGRAPHY
    (pp. 311-338)
  18. INDEX
    (pp. 339-360)