The following is dedicated to Professor William R Cornish (1937–2022), Herchel Smith Professor of Intellectual Property Law at Cambridge until his retirement in 2004. When Professor Cornish passed away on 8 January 2022 he left us with an inestimable legacy and inspired future for intellectual property research and education in the United Kingdom and beyond. What follows is based upon a presentation to the British Law Centre, Faculty of Law and Administration, University of Warsaw, at the occasion of the Modern Challenges of IP Law Conference in Memory of Prof William Cornish, 2–3 September 2022. And on a friendship.
You and I and Amyas, Amyas and you and I William Cornysh the Younger, ‘The Knight and the Lady’ (1515)
I begin with some lines from another Bill Cornish, the poet, composer and dramatist, William Cornysh the Younger: ‘You and I and Amyas, Amyas and you and I’.1 Amyas is both a name (of Latin origin) meaning loved, and a nickname for friend. It is both individual and plural, reflective and coincident. What follows is an analysis of intellectual property through relations and friendships, reflections and coincidences. What amounts to meeting in property relations? What exactly matters, so to speak, in intellectual property?
As promised, this will be a somewhat anecdotal approach to intellectual property in the metaverse. But an anecdotal approach is not merely a personal convenience. It may, I hope, provide a way in which to reimagine intellectual property relations in the metaverse, in defiance of the ‘sensible’ approaches to intellectual property objects. Do the conceptual challenges of the metaverse help us rethink the relations in intellectual property? How are we to imagine an intellectual property cosmos of immateriality? How does the metaverse challenge the ontology of intellectual property objects? To begin to approach these questions, it is necessary to take a relational approach to the immateriality of the material, to the disenfranchisement of owners, to the uselessness of users, to the impersonal of the person. Navigating the metaverse requires abandoning these old boundaries and discontinuities, and unfolding a tale of the metaphysics of intellectual property. Or, how I met Bill Cornish.
My anecdotal explanation will focus on coincidence. This is because my relationship with Bill Cornish is characterized by a series of coincidences. This is not a story of that first introduction – as a novelty, as an event. Rather, it is through a proliferation of encounters in time and space that I met Bill Cornish.
Meeting people, ideas, objects, is always a kind of becoming together (a coincidence if you will?), a game of temporal parts. And all of us coming together to remember Bill is no different. To meet is not simply an introduction, it is to have regard and pay attention, notwithstanding the currency. And in the present discussion, to focus on meeting is critical. We must pay in regard, in attention, and with our respects. This is critical to an understanding of the relational goods in the metaverse, to encountering the context rather than simply receiving the image of law; and above all, it is to appreciate the lasting and renewing impact of meeting Bill Cornish.
First, Bill and I are both Australian and we both studied music. These coincidences might not be very compelling when it comes to coincidences, particularly the Australian one as the intellectual property scene in the UK seems disproportionately populated by Australians. Indeed, this particular coincidence does not even extend as far as coming from the same state. Bill came from South Australia and I from Queensland. But South Australia is the only Australian state to border every single mainland state and territory, with the exception of the Australian Capital Territory (which is of course the curious incursion within the state of New South Wales). South Australia literally, materially, meets everywhere.
We both came to the United Kingdom after graduation to pursue postgraduate study – Bill for his BCL at Oxford and I for my PhD at Edinburgh. But what is particularly striking here is that we both ‘graduated’ at exactly the same ceremony in Edinburgh, 28 January 2005, when I received my doctorate and Bill received his honorary doctorate (Figure 1).
Citation: Queen Mary Journal of Intellectual Property 12, 4; 10.4337/qmjip.2022.04.00
We have both been Readers at Queen Mary University of London. And finally, Bill was appointed Herchel Smith Professor at Cambridge in 1995 (the first), while I was appointed Herchel Smith Professor at Queen Mary in 2007 (the first woman to hold the Chair). And we both have been accused of looking sideways, so to speak – Bill as a legal historian, and I for all manner of distractions. Indeed, it is in his characteristic sideways glances, his excursions into legal history and socio-legal considerations, that I feel the most coincidence with Bill. And one of the most significant examples of his work in this area is the monumental Law and Society in England 1750–1950, published in 1989.2 It is in this work that Bill himself describes the law as ‘a branch of social history’ and the examination of that historical context to the law as integral to understanding and appreciating ‘the economic and social conditions which gave the law its essential significance’.3 In the preface to the first edition Bill writes, ‘Geoffrey Clark and I felt keenly that the omission of this history from the stuff of legal education weakened its very texture and needed fundamental repair.’4 In other words, Bill and Geoffrey sought to encounter the law, as distinct from receive its immutable image as presented through training and education. Bill’s scholarship, at its heart, was tackling in the law the fundamental philosophical problem of representation. How do we meet the law?
Fundamentally, Bill and I both agree that a legal education is not about training to a formula, but about using training as a spur to a critical creativity. But the publication and subsequent reception of Law and Society in England was not an easy journey. Geoffrey Clark died in 1972, just a few years after the contract with Penguin. But Bill continued the project and it was some 20 years after the original contract that the book was complete. By this time Penguin was no longer interested. What is the market for a critical perspective in a textbook?
Despite some expected, as Bill himself described it,5 negative criticism, across the reviews there is a consistent coincidence, if you like, on the need for change. In reviews contemporary with the publication of the first edition, those written by legal scholars describe its importance for not only legal history but also legal education. AWB Simpson wrote, ‘English legal education has long been dominated by the tradition of legal science, and still is, though the term itself has become unfashionable. Legal science provides a particular way of thinking and talking and writing and arguing about the law, or what may be called a model of law.’6 In other words, legal science provides the image of law, and legal history exposes the problem of representation. Unlike some of the more negative accounts from legal scholarship, those reviews coming from the discipline of history appeared to welcome the sub-discipline of legal history. PWJ Bartrip declared, ‘In truth, there is no aspect of society and economy which does not have a legal dimension’.7
So what is the possible significance of all these coincidences other than charming anecdotes? What does coincidence have to do with understanding what or when is at stake in the metaverse? First, what do we understand by a coincidence? To coincide means to be identical in area, that is, to occupy the same place at the same time. In this notion of two objects in the same place at the same time, there is an enticing resonance with whatever is at stake in the relationship between intellectual property and NFTs (or non-fungible tokens). In the relationship between the NFT and the digital asset to which it attaches (or meets) it is the NFT itself that becomes the asset. But it does so, paradoxically, not through the object in space, but rather through free space in time. I will return to this, but it is confounding in ways similar to the coincidence necessary for the simultaneous existence of a statue and the clay from which that statue is made.8
In coincidence there is also a sense of accident, of the absence of intentionality, and a complete indecision in design – contingent meetings and chance encounters. But what is fascinating about mathematical accounts of coincidences is that there are no accidents. But if there are no accidents, are there then no coincidences? Maybe so, at least not in the ‘magical’ sense of the term that persists in popular discourse. The link between accident or not is arguably in the meaningfulness of the encounter itself, the chance of its property, the importance of meeting.
On this point, a coincidence is also to agree, to accord, and in its earliest uses this is the more common emphasis. A coincidence therefore suggests a level of engagement and respect, a level of regard and consideration. A coincidence is thus a kind of shared interest, a convergence, a commonality. In the engagement of that meeting is a kind of perspective-taking and affiliative learning. In this sense, then, such a coincidence is thus also a kind of empathetic and ethical encounter. This is quite apart from the rivalry and exclusion anticipated in modern understandings of property and of intellectual property in particular. On the contrary, coincidence is at the heart of relational property and personal relationship goods: ‘Things become friends, as it were, not through a fixated possessory intentionality, but rather through the instrumentality of relations and contact’.9
The emergence of coincidence was always in the stars, so to speak, in that the term originates in coincidere in medieval Latin,10 as used in astrology and astronomy. The apparent divide or even antagonism between arts and sciences that pervades contemporary thought, and arguably underpins some of the resistance to the context for legal education, as Bill described it, is quite apart from the holistic or connected nature of medieval thinking. The inextricability of astrology and astronomy, of evidence and belief, of arts and sciences characterizes medieval scholarship. And this constellation of arts and sciences inheres in the word itself – coincidence is a combination of com/co (with or together) and incidère (to fall upon or into). Should we all be medievalists?
And of course, to recall the mathematical quality to coincidence, there is a scientific appropriation, which is also credited with the adoption itself of the term coincidence in general English use. The year of the emergence of the terms, coincide and coincidence, in the English language is largely agreed as 1642, as detailed in the writings of Jeremy Taylor.11 Coincidentally, this is also the year of Isaac Newton’s birth, of Galileo’s death, and of Abel Tasman’s arrival on the shores of Van Diemen’s Land (later Australia), initiating centuries of colonization. Recalling the connected universe of medieval coincidence, 1642 is seductively resonant with this cooperation between the arts and sciences. Newton’s Laws of Motion are themselves all laws of coincidence. They are all about paying attention to coincidence.
Coincidence is indeed a meeting of the two cultures – art and science – not only in its medieval origins but also in its more recent linguistic development and acceptance. This returns me to my other meeting with Bill; that is, on the context for law in education and research. Rather than the separate spheres of a conservative legal science and a ‘liberal’ social and historical context, instead a compassionate, as it were, account of the law is necessarily plural. Newton was not simply unweaving a rainbow, as he was accused famously by Keats.12 He was disseminating the poetry of science.
Indeed, as mentioned, the acceptance and development of coincidence in the wider English lexicon has been attributed to the very use of the term in science. Coincidence is itself a meeting of arts and sciences, a meeting of history and law, of context and image. The universe of law is decidedly meta. A coincidence is thus a happening, a becoming together, if you will – same space and same time, however that might be. To coincide is quite simply to fall upon or into something. I simply fell into the universe of Bill Cornish. And once there it became impossible to remember my moments in intellectual property before him.
Why do these coincidences matter? Is this unweaving a rainbow? Or like the rainbow from Newton’s prism, do these meetings make matter out of relations? Louis Althusser’s philosophy of the encounter understands a materiality in the encounter. If this is imagined in the context of the NFT and its relationship to the artist, the consumer, the object – that is, the NFT as nexus between artist and collector (or buyer, or fan) – it appears that it is the encounter itself, the relationship, that is the basis for the materiality of the NFT, not the underlying copyright or digital object as such. The NFT is itself a unique coincidence – the same place at the same time, recorded for posterity on the blockchain.
In other words, an encounter is not an object lesson in images, but rather a necessarily mutable exchange. As Althusser continues, ‘the encounter creates nothing of the reality of the world, which is nothing but agglomerated atoms’.14 In other words, the encounter does not replace the world of images with more images. Similarly, the NFT does not create the object of the NFT (the underlying digital asset). Rather, what it does do, to borrow Althusser’s words, isto give rise to an encounter from which a world is born, that encounter must last; it must be, not a ‘brief encounter’, but a lasting encounter, which then becomes the basis for all reality, all necessity, all Meaning and all reason. But the encounter can also not last; then there is no world.13
The NFT orientates and makes the digital object.that it confers their reality upon the atoms themselves, which, without swerve and encounter, would be nothing but abstract elements, lacking all consistency and existence. So much so that we can say that the atoms’ very existence is due to nothing but the swerve and the encounter prior to which they led only a phantom existence.15
The world of images is simply a world of change, of contingency. It is only through the encounter that any of these objects becomes possible. It becomes a question, then, of how to buy time. The NFT does not buy copyright or even the digital object itself, if we are to consider the infinite replication of the object in the digital space. What it buys is time – or more particularly, a specific moment in time – the time of the encounter. But how does that encounter subsequently persist through time? How does it last?
The NFT asset is a curious insight into how property may persist through time, whether as a whole object, or as a distributed relation of parts, or as distributed parts of relations. The metaverse introduces a kind of sociability of property which, while inherent in the structures of intellectual property, has nevertheless been hidden by the predatory discourse of intellectual property scarcity – that is, how an intellectual property object may be contrived to persist through time. From a public interest perspective, this has been the catastrophe of rivalrous parts in the predatory mythology of modern properties. But in actuality, intellectual property both extends through space (the objects to which the intellectual property interest is affixed) and through time (not only in the sense of duration of rights, but also in the very sense of the passage of change or innovation that is at the heart of the discourse of intellectual property, if not the creative context itself).
How then might this relational approach in the metaverse interfere with the counting of intellectual property objects? How might it unsettle the mythology of the intellectual property ‘whole’ – that is, that the object can be pure and immune to both its context and its use? This presumption of the immutable and enduring object is indeed consistent with the predatory approach to property as rivalrous and competitive forms, a rivalry which is indeed a contrived legal fiction in intellectual property precisely by adhering to this predatory discourse. It remains to be seen if the ecosystem of the metaverse shifts the boundaries of property to the relational encounter, and to the altruism and cooperation that is at the heart of evolutionary success, rather than the misleading mythology of the survival of the fittest. This cooperation is arguably also at the heart of coincidence. Or at least, this is how we make sense of coincidences – by seeing patterns and meaningful relations. That is how we count objects – not by distinction, but by relation.
For me, this is the especially interesting perspective to come from the metaverse and from NFTs in particular. There is considerable preoccupation around the reproduction of the object to which the NFT may attach, but in many circumstances, the object endures in a way wholly separate from the value of the encounter in the NFT.16 The nature of a consistent identity for the intellectual property artefact that might be said to underpin or associate with the NFT is thus mythical. The NFT buys times in such a way that the different temporal parts of the object begin to take shape, so to speak. The object can have different properties for different NFTs and indeed for different right clicks, or different drags and drops, for anyone else.
All of a sudden, intellectual property objects are no longer the ordinary, persisting, enduring things that we might look about, but are relational with both spatial and temporal parts. And above anything else, perhaps this is the excitement and the revolution of the metaverse – that it challenges property as rivalrous and separable, that it challenges objects as timely, discontinuous and distinct.
The phenomenon of NFTs has been curious to many, to say the least. Indeed, it has appeared to be irrationally seductive to some. But while the traditional intellectual property object might be considered the stakes in an art of war, or a war of arts (that is, as rivalrous goods), NFTs introduce us to the art of seduction. Jean Baudrillard describes seduction as opposed to production in ways that resonate with Althusser’s philosophy of the encounter. He writes, ‘Seduction removes something from the order of the visible, while production constructs everything in full view’.17
In the metaverse, it is not so much the removal of something from the order of the visible – indeed, everything appears to be there for the taking in the various NFT galleries and marketplaces. Rather, it is the removal of attention to the order of the visible as the certainty of value and the disappearance of the physical object in the proliferative domain of the digital. Indeed, it might be said that intellectual property is in a constant tangle between production and seduction. Suddenly the seemingly inexplicably seductive power of NFTs makes tremendous sense, as it were.
[T]he universe of seduction was what stands out radically against the universe of production. It was no longer a question of bringing things forward, of manufacturing them, of producing them for a world of value, but of seducing them – that is to say, of diverting them from that value, and hence from their identity, their reality, to destine them for the play of appearances, for their symbolic exchange.18
The property, as it were, in the NFT is therefore paradoxically about contact. It is property that is at the same time both unique and yet infinitely replicable and proliferative. The value of the NFT is the value of coincidence – it is a kind of culture contact, a coincidence in an object that may have multiple NFTs. Each contact is coincidental and yet at the same time utterly different and dissonant. It is perhaps no coincidence, and yet entirely coincidental, that one of the biggest gaming social platforms is called Discord.
How does one meet in the metaverse? How do we meet objects in the metaverse? Importantly, property relations shift away from the object as such to the author (however that might be understood), to relations with the author, and to a kind of relational personhood through a more sociable property.
And so, when and where exactly did I meet Bill Cornish? It doesn’t matter. I encounter Bill in many ways most days, and that is the materiality of our meeting that endures beyond the time and space of whenever we fell into that first chance encounter. The truth is, I cannot actually remember the very first time I met Bill Cornish. I am pretty sure it was not at my graduation, because seeing Bill that day was like seeing an old friend. But then again, Bill was always so warm and charming, even at the first meeting he could make people feel like they had been friends forever.
So no, I cannot remember when I met Bill Cornish, but there are so many ways as to how. All I can be sure of is that I, and everyone else in intellectual property, has met Bill.
- 3↑
Cornish WR , '‘Preface’ ', in WR Cornish & G de N Clark (eds), Law and Society in England 1750–1950 , (Sweet & Maxwell , 1989 ) v.
- 5↑
‘It came into fully expected criticism from the left who thought it was too complimentary to the English legal system and it should have been all about its failings, its class prejudices, the narrow education of its judges and like matters’: Conversations with Emeritus Professor William Rodolph Cornish, by Lesley Dingle and Daniel Bates. Third Interview: Scholarly works, 22 May 2015. David Sugarman’s criticism is perhaps more concerned with the critical perspective upon history, rather than a concern with the representation of the English legal system as such: ‘[T]he authors’ largely unspoken assumptions about the writing of history, and the means used to fulfil their laudable goals, obstructs to some degree what they purport to be doing. Thus, from time to time they accept highly questionable notions of the subject-matter of legal history, thereby unwittingly reproducing the values and conversations of the historiography and legal scholarship that they seek to transcend. Increasing the ratio of “context” to “law” and enlarging the references to the historical literature are undoubtedly useful; but they cannot of themselves achieve the larger ambitions of this text’:
Sugarman D , '‘Writing “Law and Society” Histories’ ' (1992 ) 55 (2 ) The Modern Law Review : 292 -308, at 293.
- 6↑
AWB Simpson , '‘Legal Education and Legal History’ ' (1991 ) 11 (1 ) Oxford Journal of Legal Studies : 106 -13, at 106.
See further Sugarman (n 5).
- 10↑
F Verbiest, Astronomia Europaea (attested before ca. 1400/fifteenth century) – see
Golvers N , '‘The Latin Treatises of F Verbiest, SJ, on European Astronomy in China: Some Linguistic Considerations’ ' (1995 ) 44 Humanistica Lovaniensia: Journal of Neo-Latin Studies : 305 -69.
- 11↑
Shepherd HE , '‘The History of Coincide and Coincidence’ ' (1880 ) 1 (3 ) The American Journal of Philology : 271 -80.
Shepherd is cited in The Oxford English Dictionary etymology of the terms.
- 12↑
This famous phrase emerged during a dinner, 28 December 1817, hosted by Benjamin Haydon and attended by Charles Lamb, William Wordsworth and John Keats. In his autobiography, Haydon recalls Lamb saying, ‘in a strain of humour beyond description’, that Newton ‘believed nothing unless it was as clear as the three sides of a triangle’. Haydon describes how Lamb and Keats then agreed that Newton ‘had destroyed all the poetry of the rainbow by reducing it to the prismatic colours’. See
Haydon BR , The Autobiography and Memoirs of Benjamin Robert Haydon (1786–1846) , (Harcourt, Brace & Co , 1926 ) 269.
Thus, it is not entirely clear if the phrase was uttered by Keats, or by Lamb, or by both. Nevertheless, it is Keats to whom the phrase has been permanently affixed, largely because of his later poem, ‘Lamia’, published in 1819, in which Keats writes, ‘Unweave a rainbow, as it erewhile made / The tender-person’d Lamia melt into a shade’.
- 13↑
Althusser L Goshgarian GM , F Matheron & O Corpet (eds), Philosophy of the Encounter: Later Writings, 1978–1987 , (Verso , 2006 ) 169.
- 16↑
For example, Quentin Tarantino’s proposal to issue NFTs linked to his original handwritten notes for the screenplay for Pulp Fiction (1994) – at once archiving the original document and seemingly immortalizing its digital assets for everyone. See further https://tarantinonfts.com.
