Intellectual property rights act as a regime of enclosure under cognitive capitalism, ensuring the re-assertion of hegemonic communication

The “distinctive quality” of the Marxian limit which is tried to be overcome by capital through the strategies of ex-novo separation pertains to the tendency of workers’ open-direct access to social wealth that is not mediated by the natural laws of capitalist mode of production. When capital’s eternal desire to colonise and accumulate is constrained or threatened by the workers, capital encounters with an alarming situation. In cognitive capitalism, the becoming-centrality of the common provides a political opportunity for workers to invert the essential separation and claim their autonomy in relation to capital. In this context, capital strives to separate people ex-novo from the growing common forms of wealth by mobilising aggressive commodification strategies such as intellectual property rights. A Structural Contradiction: The Enclosure of the Common through Intellectual Property Rights From the standpoint of classical economics and property law, the system of private property (be it real estate or intellectual property) rights is based on two levels of provisions. The first level concerns the rules, norms, conventions, laws, etc. (these are the forms of obligations in differing intensity) that establish the usus (the delimitation of uses), fructus (the exclusive right to enjoy), and abusus(the alienability; the ability to exchange at mutually agreeable terms) of goods, where good is understood to be anything that is recognised as an object of economic, symbolic or social value (Alchian, 2019). The second level concerns the institutional arrangements, that is, the 18 conditions for the enforcement of those laws, rules, and so forth. These two levels are interrelated inasmuch as if the forms of obligation are ignored, they fall into disuse and the character of enforcement is rendered obsolete. In industrial capitalism, on the whole, the jurisdictional and institutional arrangements which inform the nature and execution of private property rights in general, and intellectual property rights in particular were not a subject of major debate for two reasons. First, in industrial capitalism ‘the production of wealth and value is [largely] based on material production and manual labour’ (Morini and Fumagalli, 2010: 235) and, accordingly, the volume of “intellectual” products such as knowledge(s), designs, ideas, codes, images along with the artefacts which are innately not separable (divisible), rival, and excludible was quite limited. Second, the formation of monopoly with regard to the trade of intellectual products was firmly established and regulated by the system of i) patents, ii) trademarks/branding, and iii) copyrights. These mechanisms secured the unity of usus, abusus and fructus of intellectual goods and enabled the transformation of them into scarce goods on the market, thusly providing the tenant of IPR legal right to have monopoly. The evolving technical means of reproduction surely challenged the IPR enforcement by overstepping the legal apparatuses, which was followed by a new writing of the law(s). In cognitive capitalism, the issue of IPR, has become a central topic. The legal proceedings and the increasing court cases over the conflicts of IPR are indeed everywhere (Reuters, 2014). It is not a coincidence that in 1996, a journal was launched which was dedicated to this subject (i.e. Journal of Intellectual Property Rights). Here, we may underline two main interrelated reasons. Firstly, as discussed in the previous sections, the value and wealth have increasingly come to rest on immaterial production (and its intellectual products) which is increasingly conducted within and through the common. This corresponds to the tendency of workers’ re-appropriation of intellectual powers of production, reversal of workers’ separation from the means of production, 19 and hence their increasing autonomy in terms of production relations; a tendency which creates a distressing situation from the perspective of capital. This “distressing” situation, secondly, was raised to an “alarming” situation with the tendential breakdown of the strong links between usus, fructus, and abusus, which was engendered by the force of digital revolution. The new information and communication technologies transformed the results of immaterial production (i.e. intellectual products) into a sequence of binary digits via, for instance, software compression and encryption. In the digital world, the reproduction which is based on meta-data is virtually identical with the original, whereas in the analogical world the latter is always distinguishable, for it is necessary to utilise a physical medium (e.g. tape recorder) for the process of its reproduction. Since the digital data could be coded in the digital media, reproduced, and delivered virtually at zero marginal cost, the inversion of scarcity of creative, social, knowledge commons in relation to intellectual goods has come to the forefront. The rise of ‘digital multitudes’, the elimination of the limits to reproduction, the inversion of scarcity of commons, the developments in the capacity for the repository of intellectual goods have culminated in the ‘limited user rights, conditional fructus, and non-alienability’ (Boutang, 2011: 106) of intellectual goods. As a response to this “alarming” situation, we have witnessed an aggressive plan directed towards enclosing the commonality of immaterial production through IPR. To mention a few, some strict measures [i.e. laws and treaties] were set out, via the World Trade Organisation (WTA), in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), as finalised at the Marrakesh Agreement in 1994. The measures were then strengthened in Doha Development Rounds. In 1998, Digital Millennium Copyright Act (DMCA) passed in the United States, followed by the European Union Copyright Directive in 2001. The final version of the Directive on Copyright in the Digital Single Market by EU was approved on 26 March 2019. According to the World Intellectual Property Organisation (WIPO), there are currently twentysix international intellectual laws, treaties and conventions, binding 191 member-states legally . In cognitive capitalism, nevertheless, the process of enclosure through enforcement of IPR manifests a paradox or, using Marxian terminology, a structural contradiction in two ways. First, capital’s attempts to enclose the commons through IPR in order to (re)establish hegemony over intellectual powers of production actually inhibits the development of productive forces, and thereby capital prepares its own social crisis in terms of established relations of production. Second, the enclosure through IPR curtails the business opportunities in terms of innovation, profit-making, and growth. In what follows, I will discuss these two critical points.