There is no counterhegemonic IP---“rights” of IP actively preclude enforcement of all other human rights. AND, working within IP facilitates neoliberal enclosures.

The crux of much intellectual property (IP) scholarship in the last two decades has been how to define a progressive, counter-hegemonic research agenda vis-à-vis the seemingly irresistible expansion of property rights and the consequent contraction of the public domain in every corner of the intellectual public sphere. Footnote1 To be sure, the very notion of a ‘progressive’ agenda is highly subjective. For lawyers working for – or on behalf of – private corporations or institutions that defend corporate interests, the research agenda will consist essentially in (re)searching the best solutions to maximise extraction of value and capital accumulation by taking advantage of IP rights. In this context, a progressive agenda is simply the one that ‘progresses’ the capital’s interests and increases market power. By contrast, academic researchers have the right to set their own agenda and they may choose to use this constitutionally protected freedom to question, interrogate, and criticise dominant power structures – and specifically the way in which those structures influence, shape and make use of IP rights.

The problem is that power structures change over time and so does the interpretation of what should be defined a truly counter-hegemonic approach to IP.Footnote2 Therefore, it may be the case that a research agenda loses its progressive feature, or even becomes regressive, if it does not take into due account the changes in the dominant power structures. I argue that this is precisely the risk of IP scholarship today.

I will develop my argument focusing on two related aspects, namely the role of IP law in the commodification of intangibles and the boundaries imposed on commodification by the claims of the public domain. Since the latter is the single most defining element of ‘progressivism’ in IP research, I will address in particular the changing role of traditional public-domain-enhancing IP doctrines, such as fair use and exceptions, in today’s phase of capitalism. I will make my point with the aid of three ‘case studies’, covering three distinct areas of IP law.Footnote3 But before that, I will delve a bit into social and economic history in an attempt to extract the key dynamics that led to the current global system of IP law.

2. The ‘great transformation’ and the making of IP law

The IP regime as we know it today took much of its shape, in so-called industrialised countries, in the second half of 19th Century. It is the result of a law-governed process of enabling market forces to extract value from instances that are not even ‘things’, let alone commodities: actions like writing a book, composing a melody, inventing a new device, designing the shape of an object, indicating the source of origin of goods – all these actions and more, abstracted from the respective intellectual commons to which they belong, could be transformed into tradeable commodities by operation of law.Footnote4

Such commodification is the result of a process that coincides, historically, with the rise of industrial capitalism and the market economy. To be sure, patents, copyright, and trademarks have been around at least since the 16th Century, when the market economy did not yet exist, let alone a capitalist market economy. In fact, not only can the actions mentioned above be protected by law while remaining an integral part of their respective intellectual commons and without being abstracted from those commons and commodified,Footnote5 but also even markets in products resulting from those actions can subsist and thrive in the absence of capitalist forms of production.Footnote6 So capitalism did not ‘invent’ patents, copyright and trademarks: rather, it took them from the existing arsenal of legal tools and transformed them gradually into forms of property over tradeable commodities – and into commodities themselves to be exchanged in the marketplace. These commodities are not less ‘fictitious’ than the three factors of production – land, labour, and capital – described as such by Karl Polanyi in his seminal work on the ‘great transformation’.Footnote7

Historically, the symbolic landmark of this first transformation is represented by the international treaties signed at the height of the age of classic liberalism and free trade, namely the Paris Convention on industrial property of 1883 and the Berne Convention on literary and artistic property of 1886.Footnote8 The success of the resulting IP regime – which was destined to remain in force, essentially unaltered in its structural elements, for a good century – depended on the tacit assumption that legitimate competing interests over intangible commodities created by law – works, inventions, badges of origin etc – can be defined and balanced ex ante by the law itself. Such ex ante determination operated in various ways, for example by establishing that exclusive rights over certain protected subject matter have limited duration, limited scope (eg expressions and not ideas) and are subject to exceptions (eg fair use in copyright, government’s use in patent law, etc) or to other provisions that temper the exclusionary nature of property rights (eg compulsory licensing). By defining de jure the dividing line between what can be claimed as private property and what should remain in the commons, the law enacted a commodification of intangibles that was strictly functional to the correct operation of the market. From a Polanyian perspective, the limits embedded in IP law can be interpreted as part of the ‘protective counter-movement’ that arises in response to unrestrained marketisation and the degradation resulting from treating human life and nature activities as mere commodities. Such counter-movement does not just protect society and nature from the destructive forces of the market, but is also required for the continued existence of the market structures themselves vis-à-vis the threat of self-destruction. In Polanyi’s words:

For a century the dynamics of modern society were governed by a double movement: the market expanded continuously but this movement was met by a countermovement checking the expansion in definite directions. [This countermovement] was more than the usual defensive behaviour of a society faced with change; it was a reaction against a dislocation which would have destroyed the very organization of production that the market had called into being.Footnote9

The double movement results from the action of two opposing organising principles, namely economic liberalism and laissez-faire on the one side, pushing towards the establishment of a self-regulating market for the factors of production (land, labour and capital), and the ‘principle of social protection’ on the other side, aiming at the ‘conservation of man and nature as well as productive organization’ by means of protective legislation and other regulatory techniques.Footnote10

Commodification of intangibles followed a similar pattern, with market forces on the one side pressing for the complete alienation of creative actions from their original collective meaning and their fixation into mere exchange values, and societal forces on the other side seeking to protect universal freedom to access intellectual commons through regulation, legislation and resistance.Footnote11 The IP regime that took shape in the second half of 19th Century can be seen as the outcome of the double movement consisting of capitalism’s seizure of economy and society’s regulative reaction. In this way, the resulting IP system operated a commodification of certain intangibles while at the same time defining the boundaries of such commodification – and all this by keeping a neutral stance and leaving entirely to the market the task of determining the exchange value of the thus created commodities. Otherwise put, IP law established itself as an integral component of the rule-set of the capitalism game – a component whose relevance grew exponentially, without changing qualitatively its nature, in the course of the 20th Century.

3. The second transformation and the age of IP expansionism

The institutional structures that, within the IP regime, made possible a defence of the freedom to access intellectual commons against unlimited propertisation remained relatively unchallenged for a good part of the 20th Century up to post-World War II ‘regulated capitalism’.Footnote12 These structures started shaking at the end of the 1970s with the transition to a new phase of capitalism dominated by a medley of political, economic and intellectual approaches which is now commonly referred to as ‘neoliberalism’.Footnote13 At the heart of neoliberalism is the basic idea that human well-being can be best advanced by liberating individual, instead of collective, entrepreneurial forces, and that the precondition to achieve this is an institutional framework characterised by strong private property rights and weak regulatory barriers. Neoliberalism does not necessarily imply a weakened role of the state vis-à-vis the ‘market forces’ – as per the hegemonic narrative that began to take shape in those years – but rather a new and different role of the state in the capitalist system. As far as IP law is concerned, the most visible consequence of the transition from regulated to neoliberal capitalism was that the interests of the owners of the means of production – which in the classic IP regime represented only one of the competing interests in intangible commodities – were now taken directly onboard by the state. In other words, the neoliberal state diverted the IP regime from its neutral, rule-setting role and converted it to a pure instrument of capital accumulation. Indeed, according to the new hegemonic ideology of IP law-making, inspired by neoliberal economic theories, strong property rights over intangible commodities are the necessary incentives to release individual entrepreneurial forces which in turn ensure expansion, growth and market competitiveness. The ideology triggered a legislative process starting in the 1980s and 1990s in USA and in EuropeFootnote14 as an erosion of the limits to commodification imposed under the classic IP regime, which paved the way to the expansion of exclusive rights into every corner of the society and of the globe – a process whose symbolic landmark is represented by the TRIPs Agreement 1994.Footnote15 Legislations of states under the influence of neo-liberal ideology assisted informational capitalism in bringing commodification of intangibles to a new level, both quantitatively and qualitatively. Examples of IP expansionism abound: broadening of the scope of patent subject matter,Footnote16 extension of copyright duration,Footnote17 extended protection for pharmaceutical patents,Footnote18 world-wide enforceability of patents and copyrights (with increasingly high standards of protection imposed on low-income countries),Footnote19 extended trademark protection for ‘famous’ brands,Footnote20 introduction of new IP rights (semiconductor chips,Footnote21 sui generis database right),Footnote22 establishment of stronger and more effective enforcement measures and remedies.Footnote23

Seen from the angle of the distinction between private property and the public domain, as established within the traditional IP regime, the process of IP expansionism appears as the latest frontier of a law-driven plunder of the commons.Footnote24 This was not just a quantitative empowerment of existing rights, but a transformation of the very raison d’être of those rights. In fact, the process of plunder is consistent with the changing nature of IP law in the hands of neoliberal states, which loses its original neutral rule-setting character to become a mere instrument of value extraction and capital accumulation. It can be observed that, within the logic of never-ending capital accumulation, no boundaries can be set to the expansion of instruments that make accumulation possible.Footnote25 This inherent indefinability of limits to IP expansion is captured implicitly in the language of legislators and courts alike. A case in point is the proclamation of ensuring ‘a high level of protection’ that features in key EU directives and is regularly reiterated in the judgements of the European Court.Footnote26 The judiciary has interpreted the expression as requiring generally a ‘broad’ interpretation of the property rights harmonised by the EU legislator.Footnote27 Yet, in the absence of a defined yardstick, the concept of ‘highness’, as referred to the quantum of protection to be ensured by property rights, cannot function as a meaningful hermeneutic principle. It is rather a blunt assertion of an imperative: that of ensuring that the interests protected by IP rights are given default priority over any other competing interests. The quantum of protection is at liberty of expanding indefinitely to ensure that such priority is met. In its abstractness, the language of the legislator seconds the logic of capital accumulation in that, by definition, no ‘high level’ is ever high enough.Footnote28

Within the legal framework inspired by neoliberal ideology, commodification of intangibles loses the character of a legal fiction strictly functional to the operation of markets in works, inventions and other intellectual instances and turns into a never-ending task that law is permanently summoned to achieve (and is never good enough at achieving) on behalf of capital accumulation.