“Commons: Copyleft as Training Ground”
In order to advance our thinking about the commons, we are faced with two needed and interrelated theoretical tasks: 1) to connect the recent enthusiasm around alternative models of intellectual property regimes–broadly grouped under the general concepts of copyleft and the creative commons–to the ur-historical struggle centered around the idea of enclosure (simply: the process of erasing the commons); 2) to move beyond US Constitutional Law-based critiques of the contemporary IP regime to an authentically global consideration of the implications of the contemporary enclosure of the immaterial world. The fundamental question is: what is the nature of human creativity, and what can it teach us about our concept of property, both intellectual and otherwise? In this sense, I would like to ask the question of the “geography of intellectual property” by connecting
the metaphorical use of the term “commons” in current IP debates to the radical history of struggle over land, commons, and enclosure. Asking this question will, I hope, create an opening through which the true history of the concept of the commons as a claim of radical inclusion can animate the current debate surrounding digital enclosures.
“The German Democratic Republic (GDR) and the International Copyright Regime”
East German politicians had to decide if the 1949-founded GDR should continue to be a member of the Berne Convention. The occupying power, the Soviet Union, refused participation in the multilateral Berne Convention. This raised the question of whether the GDR should follow the Soviet example. But if the GDR wanted to join the world economic scene, intellectual property law was also necessary for cultural and business relations, namely book trade with foreign countries.
In 1955, the GDR government gave diplomatic notice that the Berne Convention was “again applicable”, thus reviving the membership of the former German Empire by choosing a policy contrary to the Soviet Union. On the basis of international non-recognition of the GDR and the “Hallstein Doctrine” of West-Germany, most members of the Berne Convention declined to acknowledge the GDR declaration. Neither did the international office of the Berne Convention accept an official member status of the GDR despite its formal policy concerning the extension of the geographical reach of the convention. As the GDR did not receive any recognition other than from members of the Soviet bloc, its existence as a state was hardly ever accepted in the eyes of international law until the “Ostpolitik” of Chancellor Willi Brandt led to normalization of relations between the two Germanies. It was in the 1970s that the GDR was slowly accepted by an increasing number of Convention members.
The internationalization of cultural goods and copyright forced GDR-politicians to think and act beyond a purely national perspective and short-term political interests. The western-dominated International Copyright Regime remained the ultimate reference, even for the GDR.
“From Author’s Right to Property Right”
This paper examines the arguments developed in eighteenth-century England for regarding copyright as a property right. The Act of Anne (1710) uses the language of property sparingly, speaking of protection for “authors and proprietors of . . . books and writings,” and explaining the need to safeguard “property in every . . . book” to which the statute applies. As Ronan Deazley has noted, the original draft of the statute was thoroughly drenched in proprietary language that the drafters minimized (On the Origin, 41). The statute thus created the possibility of conceiving copyright in terms of rights, duties, or actions that need not be mapped onto a view of the text (or copy) as a form of property.
Commentators generally agreed that authors were entitled to decide whether and how to publish. This most fundamental author’s right was set out by advocates of the Act of Anne (the author “has certainly a Right to choose the Hand by which he will convey his Work to the Publick”), by Blackstone (the author has a “right to dispose of [the] . . . work as he pleases”), and by De Grey C.J. in Donaldson (the author has the “sole Right to dispose of his Manuscript as he thinks proper,” but no “Right or Property . . . detached from [the] Manuscript”). This paper will explore how this premise, concerning authorial control, was developed in proprietary terms, rather than supporting a view of copyright as protecting reputation or privacy.
“How News Becomes Property”
Periodicals devoted to current events have been around since the beginning of the 17th century, and the first copyright statutes appeared in the 18th century, when many of our most fundamental ideas about authorship and ownership took shape. Yet no news writer or publisher seriously claimed a property in news reports until the middle of the 19th century. As the geography of news in America shifted from a decentralized model in which newspapers exchanged news with each other to a centralized model in which press agencies contracted with individual papers around the country, newspaper proprietors sought legal remedies against news piracy. They argued that news—the factual details of reports as well as their literary expression—could be owned. The attitudes of editors also changed during the 19th century, but most of them remained uninterested in finding a legal remedy for what they saw as an ethical problem—the need to give “credit where it is due.” Studying journalistic practice alongside case law reveals a basic distinction between news editors, who tended to claim that copying was beneficial to a democratic society because it enabled the news to spread, and business managers, who sought protection against competitors in order to guarantee a return on investment.
“Mapping Plagiarism in a Regime of Privilege”
The charge of plagiarism dispenses with the calendar and substitutes the map. It takes a moral position in relation to artistic idea, arguably judging it always already an inalienable possession. The passage of time does not lessen the crime. Rather plagiarism operates and is identified by forms of mapping: by the process of appropriative tracing or re-tracing of forms and by a mental mapping of point to point correspondences which leads to the recognition of repetition. However, not all copies are plagiaries; their classification as such is historically contingent. This paper asks whether, and in what ways the practices of the copy in the visual arts (painting, sculpture and printmaking) and charges of plagiarism were shaped by an increasingly conspicuous and efficacious regime of copy-privilege in France during the ancien régime. It further considers the extent to which emergent notions of copyright may have been informed by plagiarism: both its discourses and its practices.
“Re-Making Place: The Social Construction of a Geographical Indication for Feni”
A range of social movements mobilise around and seek to valorise ‘place-based’ imageries. There is, these movements argue, vitality in place. And this constitutes a crucial element of critiques of power/globalisation. As anthropologists remind us, people continue to construct some form of boundaries around place, however permeable and transient those boundaries might be. In the context of global agrifood, socially generated marks indicating conditions of origin have emerged that speak to a different set of moral economies. In this constellation Geographical Indications appears as a remarkable place-based intellectual property. The paper seeks to appreciate GIs as the juridical reification of a placed-based stabilisation of cultural norms. However, rather than idealise GIs, the paper also probes a ‘politics in place’. This is achieved through a fieldwork-based case study of the recently acquired GI for Feni. The paper juxtaposes accounts and observations on Feni distilling with the specifications that constitute the GI. In explaining the social construction of authenticity that sediment in the registered GI, the paper draws attention to the exclusionary effects of this translation of a cultural object into intellectual property. Enabling the GI are the dual rhetoric that animates global and local discourse on GIs: one a rhetoric of hope that is enveloped by a seduction of plenty (exports) and the other a rhetoric of fear that is constitutive of a threat of misappropriation (e.g. Basmati).
“Should There Be Property Rights in Folklore? Surveying the Intellectual Landscape of the Debate”
Along with the drive to expand intellectual property rights, a movement is underway to propertize traditional culture (folklore). Both initiatives have provoked counter-arguments. But while criticism of the extension of IP rights has been forcefully articulated, opposition to the propertization of folklore has been comparatively scattered and unfocussed.
In this paper I map the intellectual terrain of the dispute over the ownership of folklore. The opposition takes several forms in various contexts (informal, legal, diplomatic, political, academic). Many legal laypersons reject the idea on a near-visceral level. IP attorneys often see it as incompatible with the principles of copyright. Some anthropologists and legal scholars decry it as hypostatizing the concepts of ‘culture’ or ‘community.’ Diplomats of certain developed nations argue against it as inimical to the principle of freedom of expression. Some industry representatives find it incompatible with their business interests. And even some members of indigenous communities—usually supporters of propertization—see exclusive rights over traditional culture as dangerous.
An adequate cartography of these disparate vectors of protest would have to map passions and interests as well as reasons, locating all in a multidimensional social space. As an initial step toward such a comprehensive visualization, I inventory the arguments that have been given for and against propertizing traditional culture, locating them within their intellectual (rather than social) contexts. The result will be a finding aid to the debate, a display of the many proposals and objections that have been advanced in what has so far been a very diffuse controversy.
Doris Estelle Long,
“The Continuation of the Geographic Boundaries of Empire in the New Digital Order”
Current battles over the nature and scope of protection afforded creative and innovative activities in the “new digital order” have strong resonances with historic battles over the territorial boundaries that formed the basis for the 19th Century Empires whose views of land and power continue to dominate intellectual property debates today. Despite the evolving needs of the digital order, the processes of Empire, including its emphasis on territoriality as a rights modality, and its determination that its civilizing message is good for all comers, remains a powerful, and inhibitory force in the development of a rational, socially just and forward-looking intellectual property regime. One of the most critical and under-examined aspects of these processes is the adverse impact of territorial imperatives on current efforts to protect indigenous innovation, including mistaken reliance on geographically delimited indicators to protect indigenous crafts and territorially delimited trademarks in a digital marketplace. Unless we uncover the mistaken reliance on old notions of land and power contained in the Empire based systems of the 19th and 20th Centuries, we will continue to replicate the same mistakes as we craft new regimes for trademarks and geographic indicators for the new digital order. Like the Empire builders of old, we will continue to impose our vision of the civilizing concepts in intellectual property use and protection, based on outmoded traditions derived from old notions of territory.
“Innovation’s Edge: Talent Wants to be Free and Flowing”
The field of Employment IP (EIP) restrictions is a dynamic area of policy and has recently spurred heated debate. No state enforces contractual agreements to prevent post-employment mobility and competition without restriction, but while most states enforce non-compete agreements, a small but rising number of states, most notably California, void most or all such contractual agreements. This paper presents a theoretical model and empirical and experimental evidence that widespread EIP controls may have inadvertent counterproductive effects of lowering employee performance, impeding growth and innovation, and thereby preventing the rise of thriving agglomeration economies. It presents the following model and evidence for its support: The Dyadic-Dynamic Model (DDM):
Time 0 (During employment relationship):
1. EIP controls may encourage firms to invest in their managers’ human capital.
2. EIP controls may discourage employees to invest in their own human capital.
3. The absence of non-competes encourages compensation forms that are performance-based.
The Dynamic Aspect: Time 1 (Post-employment):
4. EIP controls may prevent loss of valuable employees and misappropriation of proprietary information.
5. EIP controls may reduce efficient employee-firm fit, “new blood,” entrepreneurship, social capital, network density, and positive knowledge spillovers.
6. EIP controls may lead to brain drain, with patterned flows of capital and talent from high to low control regions.
The paper is part of a work in progress examining employment, intellectual property and innovation, Innovation’s Edge (under contract with Yale UP).
“Cultural Geographies of Intellectual Property: Turnpikes and Copyrights”
In this interdisciplinary essay, I combine literary and cultural-studies approaches to the relationship between road-making and copyright in the context of the new turnpikes. The enclosure of lands and the construction of turnpikes and canals not only broadened opportunities for travel and navigation but also accelerated the dissemination of commodities of all sorts. These geographical developments expanded, sometimes beyond the point of recognition, familiar notions of place that were framed by a parish or estate or even a metropolis. By poising the Foucauldian and economic views of the implications of the turnpikes, I argue that the turnpike road system fragmented geography while simultaneously reshaping this fragmented geography into a more organized network of improved roads. Highlighting the spread of turnpikes and canals and the laws of copyright in the late eighteenth and early nineteenth century that defined how literature could be owned and exchanged, I aim to contribute to the history and theory of copyright in the intersection of geography and literature. In a telling phrase which chimes through “the great thoroughfare of the Brain,” Daniel Defoe establishes a sense of the place that locates authors within specific circuits of information, particularly within the turnpike road system as the medium and outcome, the precondition and embodiment, of the modern production of space. Crusoe’s voyage beyond the island of Juan Fernandez enfolds a return to the present Britain to reconfigure Defoe’s sense of the cultural geographies of intellectual property.