Intellectual property is not monolithic---can be repurposed to protect traditional knowledge and promote equality---binary views of intellectual property versus public domain are totalizing and reductive.

But now, in the developing world, scholars, lawyers, and activists are turning the light on what they call “poor people’s knowledge.” 11 For them, this is “the other half of intellectual property”—the knowledge that is not protected by TRIPS, but perhaps should be.12 In this chapter, I consider how “cultural environmentalism” both bolsters and obstructs the project of protecting poor people’s knowledge and promoting development through intellectual property. I argue that although the metaphor spurred the invention of traditional knowledge as a political and legal category, the same metaphor may also inadvertently obscure the inventiveness of traditional knowledge. Reifying the public domain may have the unintended effect of congealing traditional knowledge as “the opposite of property,” 13 presenting poor people’s knowledge as the raw material of innovation— ancient, static, and natural—rather than as intellectual property—modern, dynamic, scientific, and culturally inventive. According to this view, traditional knowledge holders may receive remuneration for conserving biodiversity and contributing the raw materials of innovation, but they are not recognized as intellectual property holders in their own right. What’s more, a binary view of “intellectual property versus the public domain” rejects new claims for intellectual property in traditional knowledge on the premise that these rights would shrink the public domain.14 In truth, the line between what law considers “raw material” versus “intellectual property” is less stable and more fraught with bias than the binary approach would acknowledge. While politically effective, reifying the negative may have the perverse effect of reinventing these categories as real and stable, obscuring the degree to which they are constructed and insecure. If anyone understands this, it is Boyle himself. The author of “Foucault in Cyberspace,” 15 Boyle articulated in Shamans, Software, and Spleens one of his fundamental concerns: the contested concept of authorship. Why was the shaman’s lore unprotected “traditional knowledge” but W. R. Grace’s appropriation of that knowledge “innovation”? Why was the patient Mr. Moore’s spleen “raw material” but the UCLA researchers’ cell line derived from the spleen “intellectual property”? These were more than the sharp questions of a law professor challenging fi rst- year property students. Boyle off ered up the “romantic author” not to justify these categories but to deconstruct them. Boyle persuasively argued for the need to critically probe authorship and its premise of a “transformative originality more often assumed than proved.” 16 How is it, then, that the cultural environmentalism metaphor may now be inadvertently helping to reconstruct some of the very same false binaries that Boyle set out to tear down more than a decade ago? The answer, I believe, turns on the historical contingency of the work, its intellectual history. In Shamans, Software, and Spleens, Boyle was concerned about the morality of legally recognizing some members of society as authors and not others. He bemoaned the distributive eff ects of such intellectual property laws as “colossally unfair” 17 and boldly called for “a critical social theory of the information society” 18 that would consider these diffi culties. But by and large, Boyle’s own work did not stray far from intellectual property’s economic tradition. While Boyle acknowledged the broad social, cultural, moral, and distributive eff ects of intel lectual property, his primary prescriptions stuck to a law- and- economic analysis of intellectual property. Failure to protect a public domain was, above all, ineffi cient. Destroying the raw materials necessary for creation would stunt creation itself. This approach was admittedly strategic; Boyle openly stated that economic appeals “will sometimes convince when more frankly moral appeals do not.” 19 Boyle acknowledged that his approach was not radical, but rather that it evinced “a conservative strand,” advocating “a return to the rational roots of intellectual property.” 20 Boyle displayed a rare combination: postmodern acuity and political savvy. His analogy to the environmental movement was a brilliant move. But given the discursive restraints of the time, Boyle was not able to fulfi ll his ambition completely. He openly acknowledged “the dangers of embracing too closely a language that can express only some of the things that you care about.” 2.1 Boyle was fully aware of the contingency of his economic argument, recognizing that “our concerns with education and the distribution of wealth, with free speech and universal access to information, can never be fully expressed in the language of neo- classical price theory.” 22 Today, the space for discussing intellectual property’s distributive and social effects is expanding. Notably, a vast coalition of hundreds of intellectual property practitioners, scholars, and activists from around the world are calling for intellectual property to be approached in the context of broader societal interests and development- related concerns, and not just from the narrow lens of economic incentives for innovation.23 As ever, we are enriched by tradition, but not beholden to it. We are still in need of “a critical social theory of the information society” for which Boyle’s work off ers a foundation. But since then, the discursive space for crafting that theory has expanded beyond the narrow confines of understanding intellectual property rights as incentives alone. By foregrounding the important role of “raw materials” in the process of innovation, cultural environmentalism helped provide a theoretical and political basis for recognition and recompense for the purveyors of those raw materials—often indigenous peoples who have cultivated the earth’s biodiversity and who hold “traditional knowledge” about that biodiversity. The invention of the public domain helped to foster “the invention of traditional knowledge” as a political and legal category worthy of rights. But while theorizing the public domain provided intellectual heft to new claims for traditional knowledge protection, it has also proved a stumbling block. Today, the 1992 Convention on Biological Diversity (CBD) and more recently the 2011 Nagoya Protocol to the CBD promote an international legal regime that would reward traditional knowledge holders for their role in preserving biodiversity and ancient knowledge—that is, for their role in preserving the public domain. But these international legal documents do not expressly recognize the inventiveness of traditional knowledge, nor the attendant intellectual property rights claimed by the world’s poor as authors and inventors of new knowledge. In truth, traditional knowledge is much more dynamic and innovative—indeed evolving—than the “environmentalism” metaphor, with its connotations of conservation, acknowledges. A legal regime that recognizes poor people as agents—that is, as the subjects of intellectual property, and not just as the objects of intellectual property, offering up raw materials for others to transform—is premised on a broader view of the relationship between intellectual property and development itself. Here yet another side of intellectual property is revealed: its social and cultural face, not just its economic aspects. World actors are beginning to recognize that intellectual property is about more than incentives for innovation. Just like real property rights, intellectual property rights can promote freedom and security, potentially enabling knowledge societies in which the rich and poor alike may cultivate and materially benefit from their ideas.