Interview with Christian Bessy
By Simon Schrör (Weizenbaum Institute, Berlin)
Christian Bessy is CNRS-researcher at the Ecole normale supérieure (ENS) at Paris-Saclay and works at the laboratory “Institutions and historical dynamics of economy and Society” (Institutions et dynamiques historiques de l’économie et de la société, IDHE.S), of which he is assistant director.
He belongs to the French approach of the economics of conventions (in short EC) and has written many articles and five books: “Les licenciements économiques. Entre la loi et le marché” (1993), “Experts et faussaires. Pour une sociologie de la perception” (together with Francis Chateauraynaud, 1995), “La contractualisation de la relation de travail” (2007), “L’organisation des activités des avocats” (2015), and “L’expropriation par le droit. Propriété intellectuelle, valeur, travail“ (2022).
Bessy also has co-edited five books : “Les intermédiaires du marché du travail” (together with François Eymard-Duvernay 1997), “Des marchés du travail équitables? Approche comparative France/Royaume-Uni” (together with François Eymard-Duvernay, Guillemette de Larquier and Emmanuelle Marchal, 2001) and “Droit et régulations des activités économiques et institutionalistes” (together with Thierry Delpeuch and Jérôme Pelisse, 2011), “Les biens communs en perspectives” (together with Michel Margairaz, 2021), “L’économie est une science réflexive (in tribute to Robert Salais)” (together with Claude Didry, 2023).
The recent publication of his latest book, “Expropriation by Law. Intellectual Property, Value and Labor” is the occasion for this interview about his work and the long-term developments in his field of research. The interview was conducted via email exchange between January and February 2024.
SSc: Your new book is entitled “Expropriation by Law”. How did you get the idea to write this book?
CB: This book is the translation of my French 2022 book “L’expropriation par le droit” with a few additions to make it readable for an international audience. It represents over 30 years of research, which began with the study of counterfeiting cases with my sociologist colleague Francis Chateauraynaud (EHESS) from the point of view of expertise capacities that these affairs presuppose (Bessy and Chateauraynaud, 1995). Afterward, I delved deeper by studying the collective management of intellectual property rights, in short IPRs (Brousseau and Bessy, 2006), particularly through the practices of licensing technology agreements (Bessy and Brousseau, 1998). My work in the early 2010s on the role of lawyers in the definition of law and the emergence of highly profitable law firms specializing in IPRs led me to question the way in which they participated in their financial valorization, constructing them as a new asset class that could be traded on a market. The rampant financialization of IPR in the contemporary era will have consequences for the allocation of these rights, generating increasing litigation, particularly within companies. It is this chain of events that my book seeks to analyze, using a database of court cases and interviews with legal professionals in the field. It’s a project that I had put off for a while, and it was the period of confinement that gave me the availability I needed to find this thread of “expropriation by law”, by cross-referencing virtually all my previous research.
SSc: You mentioned the rampant financialization IPR and brought up the role of actors like lawyers. Looking back on the developments in the IP-driven sector over the last 30 years. How was it possible to implement and stabilize such changes?
CB: Our analytical framework shows different conventions for valorization IPRs and their synergy over time, making patents into negotiable assets. The market for patents nonetheless is not developing on a large scale and testifies to the failure of modern finance, as we have shown using the example of Silicon Valley and the key role of new patent intermediaries who have allied themselves with financiers. Nonetheless, it’s a market that’s developing with the strengthening and development of IPR on other objects, as well as companies’ open innovation strategies. This financialization of IPR can be explained by institutional factors and corporate strategies, particularly in the new information and communication technologies.
But the whole thesis of this book is that, far from playing a passive role, IP attorneys play a decisive role in shaping policy and its globalization by contributing to strong inequalities between firms, between countries and between workers. Katherina Pistor (2019) has clearly highlighted how global lawyers, with their codifying engineering of know-how, create exclusive, sustainable, universal, and convertible capital, to the benefit of companies and often against nation states. In this way, they participate in a veritable global legal industry, which is highly prized by investment funds. The success of this IP market is based more on the collective belief in the value of IPRs than on their intrinsic qualities.
SSc: Before talking more about the role of these intermediaries, can you describe the sectors and the kinds of IPs, that are particularly relevant nowadays?
CB: In the book, we use patent law as a starting point, since this is the field we began to investigate and in which financialization began very early on, calling into question the way patent offices operate. Although the focus is on patent rights, our analysis applies to all IPRs, in particular to copyright, the economic stakes of which have become increasingly important with the development of cultural industries following an entrepreneurial logic and predatory behavior. Moreover, many objects that were protected by other IPRs, such as software, perfumes, or recipes, are now protected, under certain conditions, by the patent. In addition, the criteria of patentability, such as novelty and inventiveness, are penetrating the jurisprudence concerning copyright, leading to the introduction of an economic logic that is more and more prevalent in IPRs. Finally, lawyers and counsels in different areas of IP law are grouping together in the same firms, with the added bonus of their concentration within the same geographical jurisdiction that deals with litigation in this area. Finally, European law is evolving in an identical way on all IPRs, with the emergence of an intellectual property market that is more and more attractive to investors that finance law firms and IP brokers.
SSc: In “Expropriation by Law”, so-called legal intermediaries play a central role – you already mentioned IP lawyers. Can you give a brief overview of these intermediaries and describe why they are so important?
CB: We distinguish between different legal intermediaries and analyze their transformation, in particular through the evolution of IPR valuation and attribution conventions that they help to define and disseminate. We mention the decisive role played by patent office examiners and judges in defining patentability criteria in each technological field.
But our focus is on patent attorneys, who play an important mediation role in the institutionalization of rights. They connect different levels and tailor legal statements to the specific needs of industries, particularly in terms of patentability and the appropriation of knowledge. Mobilizing both their legal skills and their knowledge of markets, these legal intermediaries develop models of compliance with the law that minimize companies’ risk of litigation. Like any legal intermediary (Bessy et al., 2011), they can also fulfill a purely strategic role by taking advantage of a system flaw, which subsequently raises the question of their regulation. Nevertheless, they are able to capture this regulation by lobbying, particularly the global lawyers at European level. The power of legal intermediaries contributes to renewing the vision of capitalist development by raising this group of actors to the level of financiers, with whom they maintain privileged relations, and of innovative entrepreneurs, whom they confirm in their superior status.
SSc: This sounds like lawyers – with their structural connection to financiers – utilize their legal strategies to also impact the value of assets. How are the construction of the value of things and their legal assessment entangled?
CB: I think we need to distinguish between two levels. At the global level, how IP lawyers have contributed to making IPRs tradable assets on a market through a series of “investments in forms” (Thévenot, 2024), and how in a particular case they will fight to defend the value of a title or the recognition of a particular right, such as the fact that know-how will be protected with reference to a patent or copyright, thus aiming to increase its economic value.
The emphasis in this book is first on their contribution to the social construction of the value of IPRs, even if an individual intellectual property title may have no value at all. The central idea we combat is that this economic value, the price, would be determined on a market with reference to “fundamentals”. Yet despite the normative proposals of certain economists to create a market for patents, attempts to organize auctions, for example, have ended in failure. The market for patents only operates on a small scale, and essentially by mutual agreement. Yet IP lawyers, as a professional group, have done everything upstream to reduce uncertainty about the legal value of titles, as illustrated in recent years by the construction of a European patent law by these lawyers and patent office judges. In particular, the creation of a specialized patent court (European unified jurisdiction) similar to the one in the United States (Chapter 5 of the book).
SSc: Even if, or maybe because, the market for patents is not functional, it has created a number of new intermediaries that exploit the system. Especially when it comes to holders of IP-Portfolios, where you distinguish between defensive and offensive patent aggregators. What makes the latter offensive, or even aggressive?
CB: These new intermediaries acquire patent portfolios either to secure them or, on the contrary, to search for infringements. Based on the American case, an author such as Allen Wang (2010) distinguishes between “defensive patent aggregators,” who license their patent portfolios in complete security to subscribers, and “offensive patent aggregators,” who also seek to provoke infringement situations in order to make money, like the famous patent trolls. It is, in fact, to counteract this strategic use of the patent system that the first ones appeared, thus increasing the potential of the IP market. These defensive patent aggregators are similar to the intermediary organizations that collectively manage patent licenses, since they deal with the use authorization, control use of the license, the collection of royalties, and the settlement of disputes. The difference lies in the fact that they are real companies driven by a profit logic and not professional associations based on the pooling of resources, as are societies of authors (Brousseau and Bessy, 2006).
So, these new “players” pose a problem of competition with traditional IP intermediaries. They pursue private goals that do not contribute to the advancement of public knowledge. If some of them contribute to the fluidity of the market for patented technologies, the offensive aggregators are more at odds with the objective of the patent system, which is to encourage innovation.
SSc: You address the tension between different justifications of intellectual property. Private pursuit of profit versus public knowledge and resources. Are there actors or intermediaries in this system who defend and uphold the latter, civic idea of IP?
CB: All the legal intermediaries we have analyzed (patent attorneys, examiners, and office judges) do not always make strategic use of the law, and therefore converge on what makes a “good patent” and promote the construction of a public domain. Schematically, they seek to ensure that the allocation of IPRs is proportional to investment in creative activities. Or they promote the creation of knowledge commons, or combat inequalities in the attribution of IPRs, particularly within companies or in asymmetrical subcontracting relationships.
SSc: To conclude the area of financialization and legal intermediaries: What role has the rise of tech companies like Google, Apple, or Meta played in the global IP system? These companies have enormous financial resources and concentrate a large potential for innovation.
CB: The economists Cecilia Rikap and Bengt-Åke Lundvall (2020) have developed the notion of a “Corporate Innovative System” to account for the predation of knowledge by multinational companies, such as the GAFAs, on the ecosystem of SMEs that they dominate and that has gradually aggregated to initially form a global knowledge common. The success of these “big tech” companies is based on IPR and strategic acquisitions, as Neil Fligstein (2001) has also highlighted. These big tech companies share some projects with the open-source community by placing them on their development platform and taking ownership of some of the developments that are integrated into complex systems. Such an asymmetry of power exists not only in the pharmaceutical sector, but also, more generally, within each country, between large companies and SMEs rooted in territories and lacking the legal resources to protect their expertise.
SSc: Now the financialization is by far not the only area, where IPRs have an impact. What about the people who create the basis for what is protected in the end? E.g. the creatives, designers or developers. How is their situation affected?
CB: The financialization of IPRs and their exchange on a market presupposes that their holders are not constrained by forms of co-ownership with those who are at the basis of the creation of these intangible assets, which presupposes that innovators or creators cede their rights, sometimes with monetary compensation, which they sometimes consider insufficient. This form of expropriation by law is then a source of disputes. It is the emergence and resolution of these disputes that we analyzed in the last two chapters 6 and 7 of the book.
SSc: Chapter 6 is primarily concerned with court disputes over these issues of financial participation and expropriation. What did you find out about the system of court disputes on remuneration issues?
CB: I long wanted to work on disputes over employee inventions, because I had learned that there was a National Conciliation Commission (Commission Nationale des Inventeurs Salariés in French, CNIS) that could help employees avoid going to court. Modeled on the German commission, it was created in France in 1978 to accompany the French politics of patent. It is made up of non-professional judges who represent different sectors of activity, and who therefore judge rather fairly (en équité in French), according to the conventions specific to the world of production.
We wanted to explore the functioning of this conciliation body from the perspective of the search for “good law” (bon droit in French) as a field of normativity that is an intermediary between positive law and practices within the company (Cottereau, 2002). This institution can be considered as a legal intermediary, articulating different sources of normativity and highlighting the importance of professional circles in the definition of work and employment rules. It allows for a final settlement of 80% of disputes. However, for reasons of confidentiality, we do not have access to the conciliation decisions of this commission. We have therefore fallen back on judicial decisions, which are more imbued with formalism. The fact remains that they are sufficiently detailed to fully understand the nature of the disputes and the characteristics of the parties.SSc: Analyzing this empirically on a broad scale is a major undertaking. Can you elaborate a little on the methodological challenges that arose with the study?
CB: The construction of our basis for judicial decisions was not easy because certain decisions are unique and pose a problem of equivalence (n=123, 2000-2018). In a first stage of exploitation of this database, we proceeded to a rather simple statistical coding (about 40 variables): the protagonists and the nature of the disputes, the characteristics of the companies and of the salaried inventors, the amounts of the remunerations or more generally of the compensations. The main objective is not to go back over the judgment criteria used by the judges, but to link the nature of the disputes to the characteristics of the actors involved in these disputes.
From these variables, we have built a statistical typology of cases around two axes. The first axis would reflect the degree of objectification of inventive missions and of the remuneration policy. The chances that the employee inventor will succeed in some of his claims before the court increase along this axis. The second axis opposes inventors according to their socio-professional category, in particular “engineers” in consulting and R&D activities, to “intermediate professions” working in consumer goods or other industries. Each class therefore refers to a world of production.
Thus, we were able to identify an important class of decisions where the dispute concerns the insufficiency of the additional remuneration, as illustrated by the cases of the chemical and pharmaceutical industries. Nevertheless, our typology of judgments reveals another important type of litigation, in particular in innovative SMEs where IP policies are less objectified and where the creators–founders of the start-up seek to fully appropriate the inventions.
SSc: The analysis of the legal disputes reveals some of the disputes that creative workers have with their employers over the appropriation and ownership of creative results. What other forms and fields of conflict exist here?
CB: In the last chapter of our work, we sought to give more extension to the processes of expropriation of workers’ know-how. In particular, by emphasizing the decline in forms of co-ownership of intangible assets, and therefore of “intellectual commons”. This decline is linked to the financialization of these assets and the development of a platform economy, modifying the forms of work organization. More generally, we question the attribution of IPR between those who design new products and those who produce them, knowing that traditionally, rights are more attributed to the former than to the latter. Following this perspective, we have distinguished different conventions for IPR attributions according to the worlds of production (Storper and Salais, 1997). In the so-called creative industries, we are witnessing a form of dualization between designers who are considered as artists giving a certain aura to things and, at the other end, forms of self-exploitation based on free work.
SSc: Looking back on the entire book and its findings: How would you summarize what you have discovered about the interplay between labor, value, and intellectual property in general?
CB: The challenge in this book has been to articulate two projects that I had initially conceived separately. A reflection on what makes patents valuable and the role of intermediaries in this valuation process. A study that I had put off for a long time on disputes regarding employee invention. It follows on from my previous work on the contractualization of the employment relationship (Bessy 2007), which began with an analysis of institutional transformations concerning the termination of the employment contract (Bessy 1993).
There was indeed the idea that the value achieved by certain patents could lead inventors to have a piece of the pie, but it was necessary to highlight a whole series of mediations to account for the two dimensions. In particular, we have shown the role played by patent attorneys in the legal security of titles and the limitation of forms of co-ownership. It is also important to underline their rather individualistic conception of innovation, particularly when they magnify the start-up model, which refers in a certain way to the initial revolutionary intellectual right based on individual genius.
SSc: You mentioned that the book is also a review and summary of over thirty years of research into intellectual property. As retrospectives always define a starting point for something new: What plans do you have for further research and what unanswered questions have you identified?
CB: We will continue to analyze the development of the intellectual property market, particularly through its extension to new objects (AI, genome) developed by start-ups. The idea would be to identify “varieties of capitalism” in this area and the role played by lawyers. But we began to explore the issue of IPRs in the world of design in which they play, as you know, a more and more important role (Bessy and Schrör, 2024). The recent trend is for designers’ lawyers to defend their work by relying on copyright, in particular by proposing narratives that mobilize the ‘collection form’ of valuing things (Boltanski and Esquerre, 2020). The development of geographical indications also goes in this valuation form. Another current research is to focus on the development of copyright (droit d’auteur in French) in terms of moral rights concerning respect for the integrity of works. A particular question is whether this right of preservation diminishes or not with different generations of rights holders.
The Book “Expropriation by Law. Intellectual Property, Value and Labor” has been published in February 2024 at Edward Elgar (Cheltenham, UK). 204 pages, ISBN: 9781035326143, DOI: 10.4337/9781035326150
References
- Bessy, C. 1993, Les licenciements économiques. Entre la loi et le marché, Paris CNRS éditions.
- Bessy, C., 2007, La contractualisation de la relation de travail, Paris: Ed. L.G.D.J., collection Droit et Société.
- Bessy, C., 2015, L’organisation des activités des avocats, entre monopole et marché, Paris: Lextenso éditions, collection forum.
- Bessy, C., 2022, L’expropriation par le droit. Propriété intellectuelle, valeur, travail, Paris: EHESS, series: “En temps & lieux”.
- Bessy, C., 2024, Expropriation by Law. Intellectual Property, Value and Labor, Cheltenham, UK: Edward Elgar.
- Bessy, C. and F. Chateauraynaud, 1995, Experts et faussaires, pour une sociologie de la perception, Paris: Métailié.
- Bessy, C. and F. Eymard-Duvernay (eds), 1997, Les intermédiaires du marché du travail. Paris: Presses Universitaires de France.
- Bessy, C and E. Brousseau, 1998, Licensing of technology: Various contracts for diverse transactions, International Review of Law and Economics, 18, 451–89.
- Bessy, C., Eymard-Duvernay, F., G. de Larquier and E. Marchal (eds), 2001, Des marchés du travail équitables? Approche comparative France/Royaume-Uni, Brussels: PIE-Peter Lang.
- Bessy, C., T. Delpeuch and J. Pélisse (eds), 2011, Droit et régulations des activités économiques: perspectives sociologiques et institutionnalistes, Paris: L.G.D.J. Lextenso éditions, collection Droit et Société.
- Bessy, C. and M. Margairaz (eds), 2021, Les biens communs en perspectives – Propriété, travail, valeur, XVIIème–XXIème siècles, Paris: Editions de la Sorbonne.
- Bessy, C. and C. Didry, 2023, Law in Convention Theory: Regulation in Regularities, in: R. Diaz-Bone and G.d. Larquier (eds), Handbook of Economics and Sociology of Conventions, Cham: Springer.
- Bessy C. and S. Schrör, 2024, Creative labor, design and convention theory, in: R. Diaz-Bone and G.d. Larquier (eds), Handbook of Economics and Sociology of Conventions, Cham: Springer. (Forthcoming)
- Boltanski, L. and A. Esquerre, 2020 (2017), Enrichment: A Critique of Commodities, Catherine Porter trans, Cambridge, Polity Press.
- Brousseau E. and C. Bessy, 2006, Public and Private Institutions in the Governance of Intellectual Property Rights, in B. Andersen (ed), Intellectual Property Rights: Innovation, Governance and the Institutional Environment, Cheltenham, UK and Northampton, MA, USA: Edward Elgar Publishing, pp. 243–77.
- Cottereau, A., 2002, Droit et bon droit: Un droit ouvrier instauré puis évincé par le droit du travail (France XIXè), Annales HSS, 6, 1521–57.
- Fligstein, N., 2001, Le mythe du marché, Actes de la recherche en sciences sociales, 139, 3–12.
- Pistor, K., 2019, The Code of Capital: How Law Creates Wealth and Inequality, Princeton: Princeton University Press.
- Rikap, C. and B.-A. Lundvall, 2020, Big Tech, knowledge predation and the implications for development, Innovation and Development, 12(2), 1–28.
- Storper, M. and R. Salais, 1997 (1993), Worlds of Production: The Action Frameworks of the Economy, Cambridge: Harvard University Press.
- Thévenot, L., 2024, Investments in Forms. Background and Continuing Developments, in: R. Diaz-Bone and G.d. Larquier (eds), Handbook of Economics and Sociology of Conventions, Cham: Springer. (Forthcoming)
- Wang, A., 2010, Rise of the patent intermediaries, Berkeley Law Journal, 25(1), 159–200.