Intellectual property is a Capitalist Machine that causes the proliferation of capitalist commodification’s reach to the intangible. It evolves the manipulative capabilities of the Bourgeoisie to more than just the control over physical labor.

Earlier, in Chapter 2 it was argued that intellectual property relates to abstract objects and that one view of abstract objects is that they are convenient mental fictions. To say that they are convenient is to understate their value to capitalist production. In fact abstract objects have the effect of qualitatively expanding the commodity production possibilities of capitalism. We can illustrate with the very example which Marx uses to show that services do not amount to productive labour.

Assume that the pianist is playing her own original composition. Generally speaking, copyright statutes create copyright in musical works. The definition of musical works is usually very open-ended or sometimes not defined at all.59 But once copyright in a musical work exists the pianist has something to own, something to sell or license. The convenient mental fiction (the abstract object) becomes through law a commodity. The pianist is now in the same position as the piano maker, contrary to Marx’s assertion. She steps over the economic border that separates the badlands of unproductive workers from the rolling green fields inhabited by productive workers and enters the productive life of capital.

Intellectual property law is critical to her successful passage. It would, however, be a mistake to think that intellectual property law simply creates private property rights in the abstract object and so is no different from property rights in material objects. When he comes to analyse the exchange of commodities, Marx makes it clear that property and contract are necessary juridical phenomena for the exchange of commodities, but these are only reflections of underlying economic relations in the process of exchange.60 In fact one might go further and observe that what matters for the exchange of commodities is the recognition of rights of control and that these do not necessarily entail the existence of property rights. Commodities can exist and be traded without the existence of formal property rights. Presumably trade can take place in a state of nature. All that is required is some physical control over the goods. For our purposes, the point to observe is that in the case of material commodities the existence of the commodity does not depend on the existence of property rights. But this is not the case for abstract objects. Once copyright in musical works becomes part of law both our pianist and our piano maker can be said to produce commodities. But it is only the pianist who depends on intellectual property for the creation of her commodity. In the absence of an intellectual property right she is left to sell her concert performances (an unproductive service, according to Marx’s theory). Without intellectual property there simply would be no abstract object which participants in the market could recognise and make the subject of trade.

The argument we have put can be stated in the following propositions. The existence of physical commodities does not depend on law. The existence of abstract objects does. Commerce in physical commodities and abstract objects depends on a scheme of property rights and contract. Marx’s contradiction is that he sees labour as a value-producing commodity and yet does not recognise it as such when it is provided as a service or when it takes the form of an abstract object (in our sense of the term).

Now we are in a better position to see how intellectual property accomplishes the task of integrating creative labour into the capitalist mode of production. Marx more clearly than anyone sees that capitalism is a mode of production in which commodities are amassed on a historically unprecedented scale. Capitalism is not, however, the only mode of production which produces commodities. This is true of earlier forms of production. Where capitalism is distinctive is that it is a system in which the labour power of one class has become a circulating commodity available for purchase by another class, the members of both classes being formally free to buy and sell commodities.61 It is the condition of being able to readily acquire labour power that gives capitalism its Midas touch in economic production. Our argument has been that capitalism increasingly comes to depend on creative labour. Individual, rational capitalists, subject to competitive pressures, begin to seek out creative labour, for it is creative labour that is the source of much-wanted innovation. We have deliberately steered away from trying to explain this search in terms of the theory of surplus value. Rather our position is this: the search by individual capitalists for creative labour is motivated by the desire for control and ownership of the abstract object so as to gain a competitive edge over a rival. In the next chapter we shall see that the ownership of abstract objects can function to relieve individuals from competitive pressures. This provides another incentive for individual capitalists to chase the ownership of abstract objects. Clearly, if abstract objects exist under conditions of positive inclusive community (that is, they belong to all) the incentives for individual capitalists to pursue them will be considerably reduced. So one task of intellectual property law, from the perspective of the industrialist, is to create conditions of negative community so that the ownership of abstract objects is possible.

Intellectual property, in commodifying universal mental constructs, dramatically increases the commodity horizons of capitalism. Intellectual property is perhaps a sign that the commodity nature of capitalism never stops evolving. Marx thought that the commodity of labour power was the form of commodity that was distinctive to capitalism. Our analysis suggests that understanding the productive powers of capitalism does not stop with the commodification of labour power. Through the creation of abstract objects, intellectual property law provides capitalism with another distinctive commodity form and, potentially at least, another means to its further expansion. By creating abstract objects intellectual property brings creative labour directly into the relations of production. Capitalism can continue its historically spectacular commodity production run because through intellectual property law it has re-engineered the possibilities of commodity production. Not only that, creative labour, through the creation of more efficient means of production, actually diminishes the role of physical labour. The aim of the industrialist is no longer to control physical labour through contract and industrial relations law but to control creative labour through intellectual property law.

One last remark before we close this section. Intellectual property, we have argued, is fundamental to the task of integrating creative labour and abstract objects into capitalism’s production processes. This argument does not mean that we abandon Marx’s view about the fundamental materiality of production. Much of the literature on post-industrial society or post-capitalist society tends to over-emphasise the role of knowledge in production in order to obtain a convenient and bright dividing line between capitalist and post-capitalist epochs.62 Drucker offers a typical characterisation of this: ‘The basic economic resource – “the means of production”, to use the economist’s term – is no longer capital, nor natural resources (the economist’s “land”), nor “labour”. It is and will be knowledge.’63 However, our analysis of the role of the abstract object in production, when placed in the context of Marx’s overall theory, suggests that perhaps good old-fashioned industrial capitalism has a way to run before it is given its last rites by scholars. Our reasons for thinking this are these. When he comes to discuss the role of physical forces (the laws of nature) Marx says that these cost the capitalist nothing once they are discovered.64 But in order for these laws to enter the productive life of capital they must be consumed productively and that, for Marx, requires that they be mediated by or be embodied in some item of hardware, some industrial article: ‘A water-wheel is necessary to exploit the force of water, and a steam-engine to exploit the elasticity of steam.’65 Abstract objects cannot just simply step into production.

We now have the makings of a paradox. The greater the role of abstract objects in capitalist production, the greater the production of the hardware of technology there needs to be. Abstract objects propel capitalism into ever-higher levels of industrial production of physical objects. Furthermore it is clear that for Marx each new generation of technologies carries with it greater and greater investment costs. Manual tools are cheap. Machine tools are not – and computer-controlled machine tools, even less so. The rough shape of our paradox is that abstract objects, which once in existence cost nothing or little, when absorbed into capitalist production cost capitalists a great deal in terms of investment. Intangible objects generate ever-higher levels of tangible commodities. It is industrial commodity production that abstract objects help stimulate, with the result that fewer workers are employed in that production directly (because of automation) and more services are required to match the higher levels of production. For the individual capitalist there is no choice about the levels of investment needed to stay in what has become a technological race. Investment is forced upon him by competition.66 In language not intended to comfort, Marx says, ‘one capitalist always kills many’.67