IP law is a commercialization of the very lifeblood of modernity—this is evident in the expansion of Western intellectual property law to the globe via institutions of manufactured consent

Nicholas, School of Law, Criminology and Government, University of Plymouth, Plymouth, UK. “Information biopolitics: copyright law and the regulation of life in the network society.” International Review of Law, Computers & Technology, DOI: 10.1080/13600869.2020.1784563. LJS

Justifying his preference to the term ‘information’ instead of ‘intangible’ or ‘abstract objects’ for discussing IP, Drahos explains that ‘information is the daily lifeblood of human agents as communicating beings’ and highlights ‘the pervasive effect that intellectual property rights in information can have on the daily lives of people’ (1996, 171). This alludes to potential negative impacts of patentabilities of genetic material, excessive trademark protections or the socio-cultural dominance of commercial brands. Similarly, by generally replacing ‘content’ with ‘information’, the present discussion will proceed with making a larger scale argument about the impacts of copyright law on the network society. This will build on the idea that humanity and its cultures are being amalgamated with the online network medium, as argued in the previous section. The medium runs on information, of which content, in the sense of mediated transmission and copyrightable material, is only a species. We need to start thinking of content as part of the information flows that are the lifeblood of the hybrid – to paraphrase Haraway – of technology and (networked) humanity. Limitations and power-holds over information that copyright laws entrench are considerably impactful upon a world that is, in more than one ways, forced to be embedded in online technologies; to normalise daily life and its institutions around it. 3.1. Reviewing convergence culture Three key phenomena across the network society – media convergence, participatory culture and collective intelligence – underpin the concept of convergence culture in Jenkins’ account of the same name (2006). This points to the complicated relationship between corporate content production and interconnected consumption and how the two converge. Through mass online community formation processes, such as gossiping, fandom, knowledge communities (like thematic wikis) and social media trending, cultural consumption (alluding to McLuhan’s notions of tribalisation around the medium) expands upon mass production of derivative content (Jenkins 2006) and, further on, of cultural and social capitals (Bourdieu 1986). Culture (and socialisation to that end) as a meaningmaking process would always draw from existing symbols and shared knowledge reference pools (Coombe 1998). Communication is conducted via references to language, landmarks, mythologies, texts, news and melodies; social participants interpret and recycle this material, around which social continuity is established, associations take shape and culture moves on. Folklore and culture would play that role of common reference pool, until gradually displaced by industrial production of commercialised entertainment (Jenkins 2006). Regarding smaller, ethnic or national traditional communities, recognition of the inherent social function of culture and the need to preserve the integrity of its relationship with populations is articulated in cultural heritage protection laws.2 With Western societies becoming more complex, the inevitable industrialisation and mass commercialisation of cultural production upset this schema, saturating the cultural landscape, eventually defining it (Lange and Powell 2009). Yet, as Benkler (2006) notes, the network society challenged the market-based model of cultural production, forwarding a new folk culture through the users’ engagement with knowledge and content. ICTs contributed to that by itemising information onscreen. Social development and cultural processes become visible, palpable through online service account activities and records, as well as through data traces. In fact, online activities produce data – produce new information. Content per se becomes malleable, available to manipulate, interactive and ‘transferable’. Images, texts, computer code, they are all reproduced, embedded in part or in full in other online artefacts to then be stored, forwarded or shared. In practical terms, copying and unauthorised reproduction form necessary operation and routinely part of everyday engagement with (and in) online communications, from automatically made temporary copies, to sharing fragments of information – like a piece of text – images and tunes, to even reading online (Boyle 2008). The second important feature of this setting lies in the online medium’s capacity to construct a new communications language out of relations between links, pictures, video files and social networking software functions. This is an aspect of the already examined conceptual power of the medium as a language. Most characteristically, the convergence culture experience frames the capacity of networked, digitally bred generations to speak (Lessig 2008). 3.2. The copyright setting At the same time, the spread of digital technologies, enabling mass copying and distribution of music and films, has been largely associated with the big changes in the regulation of copyright law in the mid-1990s, including the TRIPS Agreement3 as well as the two WIPO Treaties.4 Drafting of laws like TRIPS and the US Digital Millennium Copyright Act (DMCA) 1998 has been contested for intense backstage lobbying and pressure from corporate IP rightsholders and, eventually, for serving the industry’s big players (Litman 2001; Drahos and Braithwaite 2002). Following the legislative trend, the EU perspective5 developed economic-utilitarian reflexes, demonstrated greater concern about being industrially competitive, and arguably went further than the DMCA with anti-circumvention rules to thus restrict fair uses in digital environments. It also left the harmonisation of authors’ moral rights out of the Directive framework6 (Spinello and Bottis 2009). According to its critics, the resulting legal landscape for copyright, which has spread globally across most WTO associated regimes, is characterised by extending copyright terms (Lessig 2004), it criminalises end-users for infringements belonging rather to the private law sphere (Drahos and Braithwaite 2002), and minimises the role of copyright limitations from legal priority to fair use defences in litigation (Lange and Powell 2009). Other criticisms include an arguable turn from earlier copyright models, which had served the public domain by ‘defining copyright ownership in terms of narrow privileges’ only (Drahos and Braithwaite 2002, 186); a manifested tendency towards privatising the intangible commons and the erosion of the public domain, branded the Second Enclosure Movement (taking after England’s common land enclosures, between the 14th and 19th centuries) (Boyle 2003); and, generally, fundamental limits being imposed on free expression, access to knowledge and creativity (Lessig 2004; Lange and Powell 2009).7 Corporate production of culture, knowledge and communications content plays key role in what has been addressed as the ‘battle over the institutional ecology of the digital environment’ (Benkler 2006, 2). As human culture evolves around – and the medium itself encourages – the recycling of information in its various forms, online users habitually engage with existing content and references to it. With corporate brands working strategically to establish market dominance in cultural consumption, their omnipresent commercial symbols permeating culture (Coombe 1998), and, apparently, cultural content production becoming increasingly concentrated within strong oligopolies (Lee 2019), copyright exclusivities raise concerns about extensive social and cultural control by small numbers of corporate entities. The implications of the above situation can be more clearly understood with reference to some concrete examples of how the power conferred by copyright law is exercised. As previously indicated, in terms of black-letter law ordinary uses of online creative works count as copyright infringements (Lessig 2008). Where more transformative engagements with content may essentially be of little economic concern, copyright rightsholders have on many occasions appeared protectionist, perhaps because such content is increasingly susceptible to widespread unauthorised appropriation and they are afraid of habitual online uses progressing into entitlements (Lange and Powell 2009). Copyright law arguably encourages rightsholders to disassociate their cultural production from notions of public responsibility (Sun 2013), while in several settings it has framed the context of exception within rather formal contexts; for example, in the UK fair dealings were mainly introduced in relation to research, study, teaching, archiving, disability and related commercial practices.8 Nevertheless, parodies, forming since early key part of cultural and political online expression through the manipulation of creative content, now count as an established copyright exception in many settings (including the UK).9 Largely, it is considered that such conflicts over derivative user-generated creations, like fan-works, Internet memes and so on, should be resolved successfully when appealing directly to existing copyright exceptions, with some setups, like the US fair-use doctrine, offering perhaps greater flexibility in favour of users (and perhaps less certainty) (Hetcher 2009; Patel 2013; Bonetto 2018). 3.3. The medium becomes the problem The real thorn in the content producers’ side has arguably been otherwise non-commercial exchanges of derivative content, taking place on online services that profit through subscriptions or practices like online advertising. This developed early into a legal argument for interfering with unwelcome content circulation, solidified within laws that outline liability for service providers who host relevant material and have knowledge of potential infringement.10 Such laws have established ‘notice and take down’ mechanisms, compelling content hosts to follow action against material uploaded by users on their services, once they have received complaints from owners of creative works. Dedicated, cheap systems have enabled complainants to automate both processes of searching online for infringements and of sending out notices en masse. Studies of complaint mechanisms have indicated small numbers of complainants (including corporate rightsholders and specialised agencies in pursuing copyright infringers), overwhelming processes for recipients, notices generated by highly centralised models of operation that frequently result in misuse (for example, repetitive auto-generated complaint notices), overall processes that are overwhelming for their recipients and filtering not being always transparent (Ibosiola et al. 2019). It follows that general concerns include the uncontrollable, biased conduct of the process by oligopolies of rightsholders, the reluctance of service providers to investigate the accuracy of every single complaint received or to be exposed to expensive litigation, and, eventually, chilling effects on expression, where infringement might not always be confirmed (Seltzer 2010; Urban, Karaganis, and Schofield 2017). In Europe, the above also point to potential interferences with human rights under the European Convention of Human Rights (Kuczerawy 2015). The latest EU legislative initiative11 attempts to address such concerns, encompassing also years of developing deliberations on the role of online service providers; it will be briefly addressed in the conclusions section. At this point, however, one is also alerted to power structures originating in the online setting and directing humanity into action, as well as shaping its development. Search engines, video platforms, social media, algorithms – these are key elements of a madeup, neither natural nor random structure. As much as providing the ground for challenging – perhaps excessive – copyright monopolies, they also condition cultural life in their own fashion. They also belong to the same larger economic and political institutional order within the network society, as previously defined. This brings the discussion closer to its most challenging aspect. Recall the earlier discussion, following McLuhan, of a biological interpretation of the online medium having symbiotically become one with humanity. Echoing cybernetic conceptualisations and with an eye on McLuhan’s reasoning, we could remark ‘change the medium and you change the organism’. This would be no fictional allusion to the spirit of Blade Runner: it involves a reading of humanity’s actual institutional surroundings within the network society. Integration with the electronic medium suggests that laws, economic interests, technologies and forms of online discipline (content takedown is one; limited access to online services is another) impact on the very essence of our biological lives, through our connection with the online medium. The next section will explore this biopolitical aspect by mobilising a series of alternative analytical tools for evaluating the issues raised up to this point.