'Intellectual Property and the
Open (Information) Society' in Matthew David and Debora Halbert (eds.) The
SAGE Handbook of Intellectual Property (SAGE, 2014) pp.4-27
'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.
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'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.
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‘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.
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click here for publisher's site
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.
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'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.
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'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.
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'Copyright Law and the Claims of Art' [2002] 4 Intellectual Property
Quarterly 369-401
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
