‘No (more) logo. Plain packaging and communicative agency’
(2013) 47 UC Davis Law Review 101-131.
The tobacco industry’s archives suggest that the global campaign for the plain packaging of tobacco products originated in 1986, when the Canadian Medical Association passed a resolution calling for cigarettes to be sold in packages bearing only a brand name and the health message ‘this product is injurious to your health’. In most jurisdictions, regulations requiring the apposition of health warnings to cigarette packs have been in force for decades. Proposals for plain packaging aim to go further, and eliminate the visual and tactile features that turn cigarette packs into ‘badge’ wrappers, and which express the subliminal messages that diminish or subvert the effect of even the most uncompromising health messages. Given that effective plain packaging regulations would severely restrict the tobacco companies’ ability to exploit their trademarks or rights in trade dress, the question of the domestic or international ‘constitutionality’ of such restrictions has become an essential ground for the industry’s contestation of plain packaging measures. When it passed the Tobacco Plain Packaging Act of 2011, which came into force on December 1 2012, Australia became the first nation in the world to impose a mandatory scheme of plain packaging, and, in the process, the first jurisdiction to adjudicate on the constitutionality of plain packaging. Plain packaging legislation raises a number of engaging theoretical and practical questions: about the legal qualities of the intellectual property rights that articulate branding strategies, about the relationship between the regimes of international trade law and world health policy, and about the history of regulatory initiatives to address the public health implications of smoking. Here, I am interested questions about the communicative agency of the mass media: what does the example of Australia’s plain packaging laws tell us about the role played by the surfaces of material wrappers and packages in branding practices?; how do brands articulate with the other strands of the mass media?
(with Brad Sherman) ‘On the prehistory of intellectual
property’ in Howe & Griffith (eds) Concepts of Property in Intellectual
Property (Cambridge: CUP, 2013) 11-28.
One starting point for Hohfeld’s analysis of fundamental legal conceptions is Justice Holmes’ observation that ‘[i]t is one of the misfortunes of law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis’. We focus in this chapter on one such ‘encysted’ idea; namely, the compound assumption that intellectual property rights relate to ‘ideas’, that ideas are intangible things, and that the architecture and operation of intellectual property rights is shaped by a real difference between tangible and intangible things. In the language of modern intellectual property scholarship, ideas are said to be by nature non-excludable and non-rivalrous; no person can be prevented from accessing and possessing an idea that has been publicly disclosed, and no person’s use restricts or diminishes the use of another. In this chapter, we challenge this premise by way of a return to what might be called the prehistory of intellectual property rights; more precisely, the history of a period in which literary and artistic productions were construed as material things rather than the embodiments of intangible works. We draw on the history of tabula picta to make a simple point; intellectual property rights are not peripheral, exceptional, fictional, or tenuously analogous forms of true property rights. Ultimately, our suggestion is that, far from being the poor relation of ‘true’ property rights, the making of intellectual property rights exemplifies what is involved in the emergence and maintenance of property rights in even the most material of things.
‘Ius resistendi. Resistance as reflexivity’ in Bauer, Harré &
Jensen (eds) Resistance and the Practice of Rationality (Cambridge:
Cambridge Scholars, 2013) 262-281.
(with Claire Marris), ‘The cut that makes a part’ (2012) 7(2)
(with George Gaskell & Sally Stares), ‘How Europe's ethical
divide looms over biotech law and patents’ Nature Biotechnology (2012)
'The materiality of what?' J. Law & Soc. 2012, 39(1),
Argues that Bruno Latour's claim that any mode of social analysis, including legal studies, must engage with the agency of material artefacts, extends actor-network theory to include the communicative dimension of "regimes of enunciation". Discusses Latour's account of law as enunciation in his ethnography of law-making in the French Conseil d'Etat, that was published in 2002. Assesses the materiality of law conceived as a regime of enunciation.
Forensic machinery' (2011) 43 Cabinet 75-80.
'Law machines. Scale models, forensic materiality, and the
making of modern patent law', (2011) 41 Social Studies of Science
Early US patent law was machine made. Before the Patent Office
took on the function of examining patent applications in 1836, questions of
novelty and priority were determined in court, within the forum of the
infringement action. And at all levels of litigation, from the circuit courts up
to the Supreme Court, working models were the media through which doctrine,
evidence and argument were made legible, communicated and interpreted. A model
could be set on a table, pointed at, picked up, rotated or upended so as to
display a point of interest to a particular audience within the courtroom, and,
crucially, set in motion to reveal the 'mode of operation' of a machine. The
immediate object of demonstration was to distinguish the intangible invention
from its tangible embodiment, but models also 'machined' patent law itself.
Demonstrations of patent claims with models articulated and resolved a set of
conceptual tensions that still make the definition and apprehension of the
invention difficult, even today, but they resolved these tensions in the
register of materiality, performativity and visibility, rather than the register
of conceptuality. The story of models tells us something about how inventions
emerge and subsist within the context of patent litigation and patent doctrine,
and it offers a starting point for renewed reflection on the question of how
technology becomes property.
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'Biotechnology as environmental regulation' in Andreas
Philippopoulos-Mihalopoulos (ed), Law and Ecology. New Environmental
Foundations (London: Routledge, 2011), 105-125.
(with Brad Sherman) 'Kinds, clones, and manufactures', in
Biagioli, Jaszi & Woodmansee (eds), Making and Unmaking Intellectual
Property. Creative Production in Legal and Cultural Perspective (Chicago:
University of Chicago Press, 2011), 269-283.
Review of Golder & Fitzpatrick, Foucault's Law (2011) 74
Modern Law Review 159-168.
'Fiction science and proprietary effect' in J-P Gaudilliere &
D Kevles (eds), Living Properties (Max Planck History of Science
Preprint, 2009) 225-239.
'Protocell patents. Property between modularity and emergence'
in M. Bedau & E. Parke, The Ethics of Protocells. Moral and Social
Implications of Creating Life in the Laboratory (Cambridge MA: MIT Press,
Teams of scientists around the world are racing to create protocells—microscopic, self-organizing entities that spontaneously assemble from simple organic and inorganic materials. The creation of fully autonomous protocells—a technology that can, for all intents and purposes, be considered literally alive—is only a matter of time. This book examines the pressing social and ethical issues raised by the creation of life in the laboratory. Protocells might offer great medical and social benefits and vast new economic opportunities, but they also pose potential risks and threaten cultural and moral norms against tampering with nature and "playing God." The Ethics of Protocells offers a variety of perspectives on these concerns.
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'Fabled Animals' - Review of Michel Serres (translated by Lawrence R.
Schehr) The parasite, in Biosocieties (2008), 3:452-455
Alain Pottage & Brad Sherman,
'Organisms and manufactures: on the history of plant inventions'
(2007) 31:2 Melbourne University Law Review 539-568.
This article examines the nature of the invention in
intellectual property law. Taking the United States'
Plant Patent Act of 1930 as its central focus, it
explores the terms in which the compatibility of
biological inventions with the modern paradigm of the
invention was debated in the first part of the 20th
century. The questions addressed in the debates leading
up to the enactment of the Plant Patent Act of
1930--what kinds of plant qualified as patentable
subject matter; what exactly did a breeder have to do in
order to qualify as an inventor; and what was the
relationship between the act of invention and the act of
reproducing the invention--were ultimately questions
about the consistency of ideas and the nature of
manufacture, the answers to which are as pertinent today
as they were some 80 years ago. We argue that in
answering these questions, the traditional notion of the
invention was redefined. Whereas traditional utility
patents were based on the assumption that the only actor
able to exercise agency in relation to the development
of a novel invention was the human inventor, the regime
of plant patents acknowledged that nature played a key
role in the creation of new plant varieties. By altering
the concept of agency that underpins the inventive
process within patent law, plant patent law
fundamentally changed the way that the invention was
configured. In particular, whereas mechanical inventors
were inventors at the beginning, breeders were inventors
after the fact. At the same time, plant patent law also
reversed the roles normally played by the participants
involved in the creation of the invention. Under
traditional patent doctrine, nature provided the
material which was then shaped into an invention by the
human inventor. In the case of plant patents, nature did
the inventing, and the breeder was relegated to the task
of identifying and then reproducing nature's creations.
One of the consequences of this is that breeders did not
create a new genetic principle--instead, they
inductively appropriated a natural event. This changed
the premise of invention--invention became an inductive
rather than an originating act. Using the doctrinal
requirement of enablement as a case study, we show how
the reconfiguration of the invention had and continues
to have important ramifications for the way that plant
inventions, as with biological inventions more
generally, are dealt with by intellectual property law.]
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‘The Socio-Legal Implications of the
New Biotechnologies’ (2007) Annu. Rev. Law Soc. Sci.
This review explores a number of legal-theoretical
studies of the encounter between law and biotechnology.
Rather than attempt an extensive compilation of
scholarship, the review focuses on those studies that
have addressed the effects that biotechnologies
(understood in the broadest sense) have had on the
composition of legal form. Although the relation between
law and biotechnology is often seen as being one in
which law is applied to biotechnology as a kind of
prohibitory limit or regulatory force, this review
explores some of the ways in which biotechnological
programs have challenged and eroded the conceptual form
of law. The hypothesis is that there is an antagonistic
relation between law and biotechnology and that this
antagonism is brought out in scholarship relating to the
key areas in which the encounter between law and
biotechnology is played out: intellectual property,
governance and regulation, and those domains of law that
have incorporated technologies of DNA fingerprinting.
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of Laws: Comparing Autochthonous Legal Cultures' in Stephan Stetter,
ed. Territorial Conflicts in World Society: Modern Systems
Theory, International Relations and Conflict Studies
(New International Relations Series; Routledge, 2007)
bringing into dialogue modern systems theory and
international relations, this text provides
theoretically innovative and empirically rich
perspectives on conflicts in world society.
This collection contrasts Niklas Luhmann’s theory of
world society in modern systems theory with more
classical approaches to the study of conflicts, offering
a fresh perspective on territorial conflicts in
international relations. It includes chapters on key
issues such as:
-- conflicts and human rights -- conflicts
in the Middle East and sub-Saharan Africa -- war
and violence -- Greek-Turkish relations --
conflict theory -- the role of states in world
societal conflicts -- legal territorial disputes
in Australia -- hegemony and conflict in global
law -- conflict management after 9/11.
While all contributions draw from the theory of world
society in modern systems theory, the authors offer rich
multi-disciplinary perspectives which bring in concepts
from international relations, peace and conflict
studies, sociology, law and philosophy.
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‘Materialities in Life and Law:
Informatic Technologies and Industrial Property’ (2006) 15(1)
‘Too much ownership: bioprospecting in
the age of synthetic biology’ (2006) 1(2) Biosocieties
Taking the example of Craig Venter’s marine bio-prospecting
expedition, this article explores the effects that bioinformatics and sequencing
technologies have had upon the process of bio-prospecting. What kind of an
aggregate is a collection that spans evolutionary ecologies, database logics and
programmable synthetic organisms? And by means of what displacements,
translations and topologies are genetic collections ‘made up’ in the age of
bioinformatics and synthetic biology?
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‘Fabricating persons and things’ and
‘Our original inheritance’ in Alain Pottage & Martha Mundy, eds.,
Law, Anthropology and the Constitution of the Social. Making Persons
and Things (Cambridge:Cambridge University Press, 2004).
collection of interdisciplinary essays explores how
persons and things - the central elements of the social
- are fabricated by legal rituals and institutions. The
contributors, legal and anthropological theorists alike,
focus on a set of specific institutional and
ethnographic contexts, and some unexpected and
thought-provoking analogies emerge from this
intellectual encounter between law and anthropology. For
example, contemporary anxieties about the legal status
of the biotechnological body seem to resonate with the
questions addressed by ancient Roman law in its
treatment of dead bodies. The analogy between copyright
and the transmission of intangible designs in Melanesia
suddenly makes western images of authorship seem quite
unfamiliar. A comparison between law and laboratory
science presents the production of legal artefacts in
new light. These studies are of particular relevance at
a time when law, faced with the inventiveness of
biotechnology, finds it increasingly difficult to draw
the line between persons and things.
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‘Who owns academic knowledge?' (2004)
24(2) Cambridge Anthropology 1-20.
‘Persons and things. An ethnographic
analogy’ (2001) 30:1 Economy & Society 112 138.
This article explores some
parallels between the ethnographies of Marilyn Strathern
and Bruno Latour. More precisely, it distinguishes
Latour's models of a symmetrical alliance between humans
and non-humans from Strathern's conception of an
ethnographic analogy,which finds (in the context of
Melanesia) a mode of social action that is indifferent
to the modern distinction between persons and things.
This theoretical inquiry takes as its theme the question
of the ownership of genetic tissues, which not only
affords a topical, concrete, context for the exploration
of theoretical issues, but also offers a persuasive
illustration of the critique of 'symmetry' that unfolds
from the perspective of Strathern's ethnographic analogy
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