IP law is incoherent- our hegemonic understanding obscures the contradictions of capitalism and occlude alternative ways of relating to knowledge

(Sasha, A feminist manifesto of resistance against intellectual property regimes: reclaiming the public domain as an open-access information commons, Critical African Studies, 13:1, 115-126, DOI: 10.1080/21681392.2021.1909881 )

Intellectual property as a historically and politically contingent institution Patents, copyrights, and trademarks as the ‘deeds to the property of the informational age’ (Kapczynski 2017) form an important terrain in the struggle against inequality and subordination, because scientific and cultural knowledge is inextricably linked to social and political power. Property is an institution contrived to serve the interests of the dominant classes, but it has lacked historical or geographic consistency (Macpherson 1978). Property represents a political relationship among people; a set of rights and claims, foremost among which is ownershipcontrol of access, disposal and benefits. The extension of ownership to knowledge and products of the mind, has now come to occupy hegemonic status, taken as granted as the status quo, but was markedly absent in pre-modern civilizations (Hesse 2002). While copyrights, patents and trademarks all have existed as ‘historically distinct phenomena’ and intellectual property is not a single historical category, for our present purpose it suffices to note that the key elements of intellectual property arose within, and represent, the historical and political conditions of postEnlightenment Western European capitalism (Darch 2017). Ownership as exclusion and value assignment as market-mediated, are not representative of the wide variety of relationships between persons and ideas, which have characterized non-Western and pre-modern societies (Hesse 2002). For instance, ancient Chinese thought placed value on the preservation, interpretation and transmission of knowledge, rather than originality; and while there was commerce in the ‘vessels’ of ideas, the ideas themselves could not be owned (Hesse 2002, 27). Similarly, in the Islamic tradition, knowledge came from God; it had guardians, but not owners. The means of transmission was largely oral recitation, and while texts had authors, attribution of authorship was a matter of ‘textual integrity’ and authentication, rather than ownership (Hesse 2002, 28). Intellectual property also faltered when confronted with indigenous knowledge systems because the nature of the knowledge itself challenged the ways in which IP attempted to transform knowledge into commodity. For instance, indigenous cultural knowledge emphasizes generational continuity and oneness with natural ecosystems; attempts to separate or alienate this knowledge, damages it (Harding 2003). These alternative approaches are often grounded in a sense of responsibility, rather than claims and entitlements. Recent scholarship in human rights draws attention to the ways in which the global human rights regime deprioritizes responsibilities as essential correlates to rights (Sikkink 2020). Intellectual Property (IP) as a set of rights and claims is a politically contingent institution that arose out of Western political philosophies. IP scholars invoke Lockean labour theory of property as a foundational philosophy of IP: ‘every man has a property in his own person’, from which it follows that ‘the labour of his body, and the work of his hands…are properly his’ (Macpherson 1978). Hegel’s conception of one’s ideas as an expression of self-consciousness have also been used to justify an ownership relation to ideas (Callahan 2017b, 70). As Macpherson pointed out, the institution of property itself represents the two contradictory elements of market societies: self-sovereignty and citizenship– which is a ceding of sovereignty to the state. However, ‘possessive individualism’, which offers a foundational justification for ownership of private property, cannot sustain a robust conception of social or political obligation (Callahan 2017b, 70). In pre-modern, as well as Socialist and Marxist practice, a more collectivist social ethos has conditioned the development of IP differently than in the West. Russia, China and Cuba have all been criticized for not adopting and enforcing the IP regime instituted by the US and Western Europe (Chander and Sunder 2004). While they are considered natural elements of capitalist economic systems, IP regimes encode an embedded contradiction: they deter competition by conferring monopoly rights to intellectual products (Perelman 2017, 56). Monopolies on the production of knowledge offer rents vastly disproportionate to those set by competitive markets, since the marginal costs of knowledge production are trivial (Perelman 2017, 56). In a way, they expose the contradictions of capitalism, which do not rest upon markets that are truly free, but rather, represent the considerable efforts of capital to secure itself toward accumulation and advantage. In this instance, by lobbying for expanded and more stringent IP protection. Interrogating assumptions The systems of intellectual property law developed by industrialized Western countries and codif ied in international legal regimes, operate to transform ideas and knowledge into a form amenable to market valuation and exclusion of access. In doing so, it encodes several assumptions that when interrogated seriously, destabilize its own claims of neutrality. For the purpose of my present analysis I focus on copyrights and patents, and interrogate their key premises from an intersectional standpoint.