Anne Barron
Anne Barron

Email a.barron@lse.ac.uk
Administrative support: Stephen Jenner
Room: New Academic Building 6.05
Tel. 020-7955-7267

Anne Barron is a graduate of University College Dublin (BCL) and Harvard Law School (LLM), and held lectureships at the University of Warwick and University College London before joining the LSE.

see also Anne Barron's LSE Experts page

 
Research Interests

My research is critical and interdisciplinary, seeking to integrate methods and frameworks drawn from philosophy, social theory and critical political economy into the study of legal concepts and legal theory. Current research centres principally on the relationship between intellectual property, information capitalism and the public sphere. Some of my recent work draws on critical political economy to explore the role of the copyright system in underpinning the profitability of the culture and information industries, and in shaping the major cultural forms (visual art, music and film) that organise artistic expression within today’s cultural public spheres. Other work draws on modern European philosophy and critical social theory to investigate alternative ways of thinking about, and instituting, authors’ rights. At present I’m especially interested in exploring the implications for law of two apparently opposed understandings of authorship yielded by critical social theory today: as rational-critical communication, and as ‘immaterial’ labour.

I’m open to inquiries from potential research students who are interested in exploring critical perspectives on legal theory or on intellectual property.

 
Selected articles
and chapters in books
 

'Free Software Production as Critical Social Practice' Economy and Society (published online 09 September 2013)

This paper analyses the phenomenon of free and open source software (FOSS) in the light of Luc Boltanski and Ève Chiapello's The New Spirit of Capitalism. It argues that collaborative FOSS production by volunteer software developers is a species of critical social practice in Boltanski and Chiapello's sense: rooted in resistance to capitalist social relations, and yet also a source of values that justify the new routes to profitability associated with contemporary network capitalism. Advanced via collective projects that are sustained by hacker norms and privately legislated ‘copyleft’ law, the FOSS ethos is apparently antithetical to private property-based accumulation. Yet it can be shown to embody the ‘new spirit of capitalism’ in its most distilled form; moreover FOSS developers have instituted new forms of property and new modes of profit creation around software that are in the process of being adapted for use in other economic sectors. Meanwhile, the private law constraints on profit-seeking that have emerged from the FOSS movement are counteracting some of the social pathologies that accompany network capitalism only to consolidate others. The paper concludes by identifying likely bases for a renewal of critique given these realities.

'Kant, copyright and communicative freedom' Law and Philosophy (2012) 31 (1), pp.1-48

The rapid expansion of copyright worldwide has sparked numerous efforts to defend the public domain, often on the ground that an expansive public domain is a condition of a ‘free culture’. Yet questions remain about why the public domain is worth defending, what exactly a free culture is, and what role (if any) authors' rights might play in relation to it. From the standard liberal perspective shared by many critics of copyright expansionism, the protection of individual expression by means of marketable property rights in authors’ works serves as an engine of progress towards a fully competitive ‘marketplace of ideas’ - though only if balanced by an extensive public domain of non-propertised intellectual products from which users may draw in the exercise of their own expressivity. This article shows that a significantly different, and arguably richer, conception of what a free culture is and how authors’ rights underpin it emerges from a direct engagement with the philosophy of Immanuel Kant.
    The article first questions the widespread assumption - most recently reproduced in the IP context by Robert P. Merges' Justifying Intellectual Property (2011) - that Kant’s position is assimilable to contemporary liberal individualism. In fact, although the idea of freedom is at the heart of Kant’s philosophy, his understanding of freedom is not at all reducible to the ideas of individual liberty or personal autonomy at play in contemporary liberal thought. This emerges particularly clearly from his vindication of the public use of reason, famously articulated in an essay entitled 'An Answer to the Question: "What is Enlightenment?"', first published in 1784. What Kant envisages here is a principled freedom that presupposes a commitment to engage in 'mature' communicative interactions with others in public. Individual expressive liberty is only a condition, not constitutive, of this ‘freedom to make public use of one’s reason in all matters’; and progress towards a fully emancipated (i.e. ‘enlightened’) culture can only be achieved through the (self-)critical reflection that this 'thinking in community with others' demands.
    The article's main claim is that when Kant's rather less famous essay 'On the Wrongfulness of Unauthorized Publication' (1785) is read in relation to the arguments for 'publicity' he advanced only a year earlier, a necessary connection emerges between authors' rights (as distinct from copyrights) and what Jürgen Habermas has named the public sphere. I argue that from a Kantian perspective, it is the public sphere of open, inclusive and principled criticism - not the public domain as such - that should serve as the regulative idea for any evaluation of copyright law’s role in relation to the possibility of a free culture.

‘Graduated Response’ à l’Anglaise: Online Copyright Infringement and the Digital Economy Act 2010' (2011) 3(2) Journal of Media Law 305-347

Barron, Anne (2010) Copyright infringement, 'free-riding' and the lifeworld. In: Bently, Lionel and Davis, Jennifer and Ginsburg, Jane C, (eds.) Copyright and piracy: an interdisciplinary critique. Cambridge University Press , Cambridge, UK, pp. 93-127. ISBN 9780521193436

The dominant explanatory/justificatory framework informing scholarly commentary on copyright law, policy and theory today - certainly in the US - is law and economics. From this perspective, copyright law exists to underpin markets in certain categories of 'information good' (copyright works). These markets in turn function to ensure that the private costs and benefits of information production and consumption line up (more or less) with the social costs and benefits of these activities, ie that 'free-riding' on the efforts of information producers is (more or less) curtailed. A widely held view is that this tradition of what might be called 'copyright-law-and-economics' is now deeply divided - between adherents to what Glynn Lunney has called 'copyright's incentives-access paradigm' on the one hand, and proponents of what Mark Lemley has called the 'full value' or 'absolute protection' paradigm on the other. Absolute protection theorists tend towards the view that all uses of copyright works should be capable of being controlled (and so priced) by the right-owner; incentives-access theorists distinguish between uses the control of which would affect the information producer's incentives ex ante, and those that would not, and recommend that copyright protection should extend to the former category only. This paper examines the features that are said to distinguish the two paradigms from each other, focusing especially on the approach each recommends to copyright's scope (ie the issue of what uses of copyright works properly constitute copyright infringements). Particular attention is paid to the efforts of critical economists of intellectual property law such as Lemley and Brett Frischmann to retrieve and advance versions of the incentives-access paradigm with a view to counteracting the disadvantages for society they believe are associated with the absolute protection paradigm. Ultimately, however, I conclude that too much has been made of the distinction, and that the debate over which paradigm should have priority in determining the contours of copyright policy distracts attention from a more fundamental issue - the hegemony of economic analysis generally in organising the conceptual and normative universe of legal scholars working in this area. Thus while sympathetic to the impulse underlying the efforts of Lemley and Frischmann - a concern to resist the seemingly relentless expansion of copyright towards the horizon of absolute right-holder control of all uses of copyright material - I argue that their lingering adherence to the presuppositions of economic analysis has stymied their well-meaning efforts to account for the social value of 'information' in terms distinct from the merely economic measure of price. My overall aim here is to suggest that, because of its presuppositions, economic analysis - in whatever paradigm it may be packaged - offers at best a blinkered perspective on both copyright law and the field of social life that copyright law affects. I conclude by proposing Jurgen Habermas's social theory as an alternative framework in relation to which critics of copyright expansionism might fruitfully orient themselves in the future.

Barron, Anne (2010) Kapitalismus 2.0 [Capitalism 2.0]. In: Becker, Karine and Gertenbach, Lars and Laux, Henning and Reitz, Tilman, (eds.) Grenzverschiebungen des Kapitalismus: Umkämpfte Räume und Orte des Widerstands [The Shifting Boundaries of Capitalism: Limits, Frontiers, and Spaces of Resistance]. Campus Verlag, Frankfurt am Main, Germany, pp. 137-163. ISBN 9783593391502

'Copyright Law's Musical Work' (2006) 15(1) Social and Legal Studies 101-127

This article addresses and contests a particular narrative about the history of copyright law's engagement with music, an exemplary version of which is to be found in Lydia Goehr's highly influential The Imaginary Museum of Musical Works(1992). According to this narrative, copyright law's conception of the musical object that it protects by means of a property right derives from an aesthetic conception of the musical 'work' that itself emerged from the field of musical practice, theory and criticism around 1800. Yet an analysis of the case law arising under the first modern copyright legislation of 1710 shows that copyright was recognized as vested in the composer of a musical 'writing' as early as 1777 in England, and that an embryonic legal 'work-concept' had already taken shape a decade or more earlier than that. This concept developed through a complex set of articulations between the doctrinal logic of property law and, especially, economic and aesthetic understandings of what a musical artefact was and where its value resided. However, far from simply absorbing aesthetic ideas about musical or other cultural practices, it is argued here that copyright's categories have developed relatively autonomously of these and other 'external' influences. Further, being only relatively autonomous, they have also actively helped to shape what is assumed - by Goehr and other historians of culture - to have shaped them. In short, the central claim of this article is that the work done by intellectual property discourse in forging conceptions of cultural form has been significant and important, and that copyright doctrine has accordingly played a major role in producing that plural construct which is known as 'the' musical work-concept.

'Copyright Law and Musical Practice: Harmony or Dissonance?' (2006) 15(1) Social and Legal Studies 25-51

The institution of copyright has frequently been criticized by scholars of popular music for systematically misrepresenting and under-privileging popular music as a field of creative practice. In this respect, it is sometimes suggested, copyright law harbours a bias in favour of Western art music that is remarkably similar to that embedded in musicology, the discipline in opposition to which popular music studies chiefly defines itself. Setting the scene for this special section of Social & Legal Studies on (copyright) law and music, this introduction reviews the literature in which these concerns have been expressed, and traces them to the fact that copyright law - not unlike musicology - operates with a conception of the musical artefact as a bounded expressive form originating in the compositional efforts of some individual: a fixed, reified work of authorship. It explores the origins and significance of the workconcept as a musicological category, and critically analyses the claim that the legal concept of the musical work is identical to this category and has been determined by it. It concludes with the suggestion that the legal and aesthetic musical work-concepts are at once distinct and overlapping: both reify a temporal experience (a musical event), but for very different reasons. Whereas the musicological category facilitates a certain kind of musical appreciation and certain kinds of listening practice, the legal category facilitates the drawing of proprietary boundaries around 'objects' that will figure in commercial transactions and be the focus of commercial expectations.

'The Legal Properties of Film' (2004) 67(2) Modern Law Review 177-208

This article focuses on the manner in which the law of copyright in the UK has made sense of a particular cultural artifact – film – in the process of figuring it as an object in which property rights can subsist. It traces the history of legislative and judicial attempts to circumscribe the boundaries around this object, noting that two approaches have emerged and now co-exist: a 'physicalist' approach which treats a film as co-extensive with its recording on some medium; and a 'formalist' approach which treats a film as an expressive form exceeding this physical manifestation. It explains why each approach is reductive and impoverished when considered in relation to how films are figured as aesthetic objects; and concludes that a modified version of the available Marxist explanations of film copyright reveals the latter's understandings of film to be closely articulated with the purposes and values of the mainstream film industry. More generally, it suggests that a reappraisal of Marxist theory may be timely at this juncture, not least because it draws attention to law's role in exemplifying the entwinement of culture and economy at a number of levels.

'Copyright Law and the Claims of Art' [2002] 4 Intellectual Property Quarterly 369-401

Comparing classification of genres of visual arts under copyright law with approach taken by theories of art, in particular Romanticism and Modernism, and arguing for shift of focus away from authorship to creative work itself.

Chapters on 'Foucault and Law' and 'Legal Reason and its 'Others'' in Penner, Schiff and Nobles (eds.) Jurisprudence and Legal Theory (Oxford: OUP 2002)

'Spectacular Jurisprudence' 2000(2) Oxford Journal of Legal Studies 301-315