The SAGE Handbook of Intellectual Property

Matthew David, Debora Halbert, Matthew David, Debora Halbert, Author

• Publisher: SAGE Publications Ltd
• Year: 2014
• Print ISBN:
  9781446266342
• Edition: 1
• eBook ISBN:
  9781473914391
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This Handbook brings together scholars from around the world in addressing the global significance of, controversies over and alternatives to intellectual property (IP) today. It brings together over fifty of the leading authors in this field across the spectrum of academic disciplines, from law, economics, geography, sociology, politics and anthropology.

This volume addresses the full spectrum of IP issues including copyright, patent, trademarks and trade secrets, as well as parallel rights and novel applications. In addition to addressing the role of IP in an increasingly information based and globalized economy and culture, it also challenges the utility and viability of IP today and addresses a range of alternative futures.

Part I Foundations and Philosophies: Intellectual Property in a Global World

Matthew David and Debora Halbert

It could be said that intellectual property law has always been global, in the sense that the primary role of the nation-state has been to protect ‘our’ innovation and cultural creation from ‘theirs’. From the earliest copyright statute, the Statute of Anne, in part designed to protect the London booksellers from the pirates in Scotland, protection of intellectual property has implied a transnational perspective. Intellectual property has long been protected via international agreements, with the Berne and Paris Conventions being perhaps the most prominent. Its integration into the World Trade Organization (WTO) via the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement firmly established intellectual property as an important international issue and this first Part seeks to situate contemporary intellectual property law within the larger international and philosophical context.

Anne Barron’s chapter begins by providing an important analysis of the contemporary global political economy of intellectual property. Barron’s theoretical framework illuminates how global capital has engaged in the destruction of a knowledge commons at the international level, a theme reflected in many chapters in the handbook. Barron uses the General Public License (GPL) and the emergence of the Creative Commons as examples of legal resistance to the enclosure tactics of major IP-driven industries. She characterizes this resistance as a ‘commons-ist’ movement for freedom from the stranglehold wielded by the owners of strong IPRs. Yet for Barron, although commons-ism poses as a ‘revolutionary’ struggle, the revolution it envisages is primarily a technological one that leaves capitalism transformed but not overcome. Barron highlights the extent to which forms of free and open source software and Creative Commons licensing have used the rules of copyright law itself to create only limited suspensions of control within a system that ultimately maintains private property and market exchange. Thus, the libertarian ethos that motivates such innovations has remained, to date, contradicted by the ‘unfreedom’ associated with ‘informational capitalism’. Barron’s position is that the hopes accompanying these experiments exceed what can be realised through new arrangements for organizing information production alone (p. 9).

Barron’s chapter is an excellent introduction to the concepts shaping contemporary IP debates and the key actors establishing the agenda. Lawrence Lessig, Yochai Benckler and Richard Stallman, have all played integral roles in the conceptualization of an alternative to the enclosure movement in information. Barron suggests that the creative commons movement and the hacker ethic that underlies these technologically driven projects might be capable of hacking capitalism itself, even if current manifestations have been largely incorporated by the market. Barron’s chapter establishes the key themes grounding a global critique of intellectual property, as well as current efforts to offer an alternative and more open path, and an introduction to its key advocates.

From political economy to classical economics, Sarah Louisa Phythian-Adams brings the viewpoint of an economic historian to the study of intellectual property, especially copyright. She offers an economic history of intellectual property grounded in a description of the principles of neo-classical economics. Her goal is to understand and describe copyright law through the lens of economic philosophy, especially the role of the monopoly within a free-market tradition. Much like the other authors in this section, Phythian-Adams takes both a philosophical and economic approach to the understanding of intellectual property. She reminds the reader of the literature that has linked the evolution of intellectual property philosophically with the classical European philosophers that inform our contemporary understanding of intellectual property law. Any thorough understanding of the history of intellectual property needs to take into consideration the way it is grounded in the philosophies of Adam Smith, J.S. Mill, John Locke, and G.W.F. Hegel. Her chapter helps make those connections clear.

Economically, Phythian-Adams seeks to work through the tensions between market failures, monopolies, and the role of intellectual property. Using the lens of economics this chapter provides an important overview of the underlying economic rationale for intellectual property generally, and copyright specifically. In doing so, Phythian-Adams helps clarify how one might think about the balance between IPRs and individual use in the digital age when the cost of sharing has been reduced to zero. She discusses a variety of methods to offset the problems of free riders and distorted transaction costs that range from business-centred commercial options to government buyouts of important technologies that can then be placed in the public domain to spur further and future innovation. She also works systematically through the economic benefits of being copied. Ultimately, her review of the economic dimensions of copyright help make visible the underlying logics and possible advantages of thinking through a new balance to the copyright system.

Where Barron’s chapter looks at the scope of intellectual property through the lens of global political economy, and Pythian-Adams takes up the economic theory behind intellectual property, Shubha Ghosh interrogates the relationship between the concept of international intellectual property and the nation-state. He begins by challenging the terminology ‘international intellectual property’ to better see the politics and ideological assumptions behind that concept. Ghosh is interested in interrogating the international philosophical dimensions of IP and develops a three-step process to do so, one that begins with the philosophy of international trade, moves on to theories of international relations, and finally ends with the step of critique. The underlying philosophical thinkers most often aligned with the study of intellectual ­property – Locke, Hegel, and Rawls – while often seemingly Western in focus, can be better understood as thinkers that help establish international intellectual property.

Ghosh begins by taking up the issue of international trade as grounded in domestic law. At a very literal level, intellectual property law exists to deal with what can be seen as cross-border externalities. There is a clear pragmatic, not philosophical impetus to such laws. However, he warns against situating the nation-state too near the centre of the analysis given that the flow of people, ideas and innovations across state boundaries has been central to the development of intellectual property laws since their inception.

International relations (IR) theory is also relevant because international flows move beyond trade where intellectual property is concerned. Like the area of international trade, traditional IR theory centres the ­nation-state as the unit of analysis. The privileging of the nation-state is especially visible in the theoretical contributions of realist international relations thinkers. However, the interaction between intellectual property and international relations theory suggests that things are more complex than centring analysis on the nation-state, especially when one introduces the Internet to modern debates over IP and IR.

The central argument offered by Ghosh regarding international intellectual property is in the analysis of how the philosophical traditions of Locke, Hegel and Rawls, which may seem to emerge from a predominant Western approach to thinking can be adapted to the global stage because these thinkers themselves were not removed from the global flow of ideas and products. Each of these theorists was already writing within an international context that transcended the nation-state and thus, to follow Ghosh’s argument, their larger philosophical contributions are relevant to the study of international intellectual property. In the end, Ghosh makes visible that the intellectual property was always international intellectual property.

Halbert’s chapter also takes up the issue of intellectual property beyond the nation-state. Her chapter shifts the view from the international to the global. Scholars of globalization have argued for a different understanding of the world that displaces the nation-state as a unit of analysis by highlighting the global flows of people, culture, power and economic goods. A globalized view can be applied to intellectual property. Like Ghosh, Halbert seeks to offer a new way of viewing the issue of intellectual property as something that transcends the domestic state. Drawing on an approach to political economy like that developed by Barron, Halbert argues that the global sphere of intellectual property is not one easily partitioned into debates between the traditional categories of analysis – rich/poor; north/south; capitalist/communist. Rather, there are multiple layers and linkages across state boundaries that converge to form different types of alliances when one looks at things globally instead of looking at things from the starting point of the nation-state within a ‘community of nations’. How global rules to protect and expand intellectual property are constructed, then, can also be viewed politically as a contested space of economic interests that transcend a given nation-state. So too, it is argued, does the space of resistance flow globally. Thus, by decentring the nation-state as the unit of analysis, the argument of a globalized intellectual property view is that the lines of resistance and advocacy can be more clearly drawn to better reflect the politics of IP.

1 Intellectual Property and the ‘Open’ (Information) Society

Anne Barron

Introduction

Two apparently opposed forces are shaping global copyright law and practice at the present time. The first exemplifies the internalization to capitalism of a drive to ‘accumulation by dispossession’ (Harvey, 2003: Ch. 4), as previously public or common resources (in this context, cultural and knowledge resources) are enclosed and subjected to private control. Whether by lobbying legislative bodies at national, regional or international levels, or through private initiatives of one kind or another, the so-called ‘creative industries’ push ceaselessly now for a global copyright system that can continue to expand their dominion over – and ability to extract value from – ever more of the world’s information assets. As well as enforcing their existing copyrights to the hilt in every significant market, the major firms in the sector (led by a handful of global corporations in the entertainment and software industries) have campaigned vigorously and successfully for expanded copyrights – and not only within particular nation states. Their goal has been to achieve a global harmonization of copyright norms such that all states are effectively obliged to enact higher standards of copyright protection, regardless of whether this serves domestic economic, social and cultural priorities. Meanwhile, these powerful corporate actors have also subjected the intangible assets under their control to regimes of private governance: designing digital rights management (DRM) systems to limit access to and use of software and cultural ‘content’ (digitized creations other than software), enforcing their terms of access and use via self-executing end-user licensing agreements, and enlisting Internet intermediaries in the project of shaping the networked environment itself so that traffic to and from suspect sites and users can be summarily disrupted, or blocked altogether. These regimes, which themselves have a global reach, are designed to supplement or supplant domestic and international copyright law with even more advantageous self-help arrangements, yet legislators have so far facilitated the emergence of these arrangements, thereby closing down the possibility of public oversight of the private power they serve. All of this is producing a privatization of previously public goods that some commentators have compared to the forced enclosure of common lands with the transition from feudal to post-feudal forms of landholding (Boyle, 2003, 2008).

Predictably, concern about the implications of copyright expansionism for fundamental rights and freedoms – to expression, the integrity of communications, data protection, privacy and due process – has prompted various proposals to constitutionalize the private relations between copyright owners, users of copyright material, and the intermediaries that enable content to flow from the former to the latter (see for example Article 19, 2013). The present chapter focuses on a different and more radical strategy: the mobilization of a countervailing force that aims to resist ‘from below’ the copyright industries’ propertization drive. Best exemplified in the free software movement, it is the antithesis of that drive because in its purest form it stands for the collective (as opposed to individual or corporate) production of knowledge and cultural artefacts, and for making these artefacts accessible to and re-usable by the global public rather than keeping them under a right-holder’s exclusive control.

At the heart of the free software movement, in turn, is the ‘hacker’ ethos – an ethos constituted of twin commitments to creative freedom and solidarity with other creators (manifested in activities of sharing and collaboration), a rejection of the division between producers and consumers of software (arising from a recognition of all users’ creative potential), a passion for both the craft and the artistry of coding work, and a conviction that innovation is best served by liberating coding creativity – especially collective coding creativity. This ethos has given rise to a distinctive approach to the organization of software development projects and a set of maxims to guide programming conduct: always make accessible the source code of any program one creates so that the program’s underlying structure can be readily understood and the program itself easily modified and improved by others; always allow the program and others’ modified versions to circulate freely; endeavour to work with others to improve programs; and avoid causing divisions within programming communities unless the pursuit of technical excellence demands it (Barron, 2013).

Yet one of the key reasons why this ostensibly anti-proprietary approach to software development has risen to such prominence all over the globe is that its proponents have found in copyright itself – the very proprietary mechanism that renders code excludable – an instrument for instituting key aspects of the hacker ethos, notably the principle of universal access to source code. The technique is by now familiar. In general, free software devel...

Table of contents

• Cover
• Half Title
• Publisher Note
• Title Page
• Copyright Page
• Contents
• Illustration List
• Notes on the Editors and Contributors
• Preface
• Acknowledgements
• List of Acronyms
• Introduction
• Part I Foundations and Philosophies: Intellectual Property in a Global World
• 1 Intellectual Property and the ‘Open’ (Information) Society
• 2 ‘The Economic Foundations of Intellectual Property’: An Arts and Cultural Economist’s Perspective
• 3 The Idea of International Intellectual Property
• 4 Globalization and Intellectual Property
• Part II IP and Development
• 5 TRIPS and Development
• 6 Déjà Vu in the International Intellectual Property Regime
• 7 Intellectual Property in Chile: Problems and Conflicts in a Developing Society
• 8 Musical Property Rights Regimes in Tanzania and Kenya after TRIPS
• Part III Branding the World
• 9 Slow Logo: Brand Citizenship in Global Value Networks
• 10 Counterfeit Commerce: The Illegal Accumulation and Distribution of Intellectual Property
• 11 Geographical Indications: The Promise, Perils and Politics of Protecting Place-Based Products
• 12 The Social Imaginary of Geographical Indicators in Contested Environments: Politicized Heritage and the Racialized Landscapes of South African Rooibos Tea
• 13 Farmers’ Rights and the Intellectual Property Dynamic in Agriculture
• Part iv Between Economy and Culture
• 14 The Political Economy of Traditional Knowledge, Trademarks and Copyright in South Africa
• 15 Author and Cultural Rights: The Cuban Case
• 16 Communicating Copyright: Discourse and Disagreement in the Digital Age
• 17 Creativity and Copyright: The International Career of a New Economy
• Part V Commons
• 18 Non-Profits in the Commons Economy
• 19 Copyright and Copyleft in India: Between Global Agendas and Local Interests
• 20 Treasuring IP: Free Culture, Media Piracy and the International Pirate Party Movement
• Part VI Creative Copying
• 21 Copyright and Ownership of Fan Created Works: Fanfiction and Beyond
• 22 Copyright and Film Historiography: The Case of the Orphan Film
• 23 Dangerous Undertakings: Sacred Texts and Copyright’s Myth of Aesthetic Neutrality
• Part VII Audiences and Sharing
• 24 Sports Television Broadcasting and the Challenge of Live-streaming
• 25 ’Piracy’ or Parody: Moral Panic in an Age of New Media
• 26 Intellectual Property and the Construction of Un/Ethical Audiences
• Part VIII Creative Origins and Limitations
• 27 Copyright Law and Video Games: A Brief History of an Interactive Medium
• 28 Promoting Progress: A Qualitative Analysis of Creative and Innovative Production
• 29 Copyright and Industrial Objects: Aesthetic Considerations and Policy Discriminations
• Part IX Regulating InnovativeTechnology
• 30 Copyright Technologies and Clashing Rights
• 31 Music, Technology and Copyright: The Makings and Shakings of a Global Industry
• 32 Copyright Trolling and the Policing of Intellectual Property in the Shadow of Law
• Part X Parameters of Patent
• 33 Politics, Law and Discourse: Patents and Innovation in Post-Apartheid South Africa
• 34 Traditional Knowledge, Intellectual Property and Pharmaceutical Innovation: What’s Left to Discuss?
• 35 Patentable Subject Matter: A Comparative Jurisdictional Analysis of the Discovery/Invention Dichotomy
• Part XI Patenting the Future
• 36 Who Owns the Extended Mind? The Neuropolitics of Intellectual Property Law
• 37 Outer Space, Alien Life and Intellectual Property Protocols: An Opportunity to Rethink Life Patents
• 38 Intellectual Property and Global Warming: Fossil Fuels and Climate Justice
• Author Index
• Index