Alternative

The steady march of IP regimes across the global South has not been without resistance. We see the use of countervailing strategies and the application of IP law as a legal vehicle for ‘facilitating (or thwarting) recognition of diverse contributors to social discourse’ (Sunder ). The linking of identity politics (issues of recognition) with intellectual property (issues of redistribution) highlight the efforts of individuals from marginalized communities to resist appropriation and benefit materially from their own cultural production. Intellectual property law thus becomes more than a tool for incentivizing creativity and emerges as a terrain of struggle for social relations. The language of this struggle is voiced in terms of human rights, as both the Universal Declaration for Human Rights and the International Covenant on Economic, Social, and Cultural Rights affirm the right of all peoples to be recognized for and materially benefit from their cultural creations.

However, the struggle of marginalized communities to benefit from their own production is not an even or fair one: the field is tilted. Their IP claims often do not succeed, not only because of the way the law is constructed, but equally because of their unequal bargaining capacities and resources (Sunder ). Consider how in India, Brahmin supremacy was sustained by their monopoly over education and the learning of English, and enforced by a violent system of intra – and inter-caste social restrictions and punishments (Chandra ). Even today, the upper-castes perceive themselves to be the natural inheritors of scientific research and practice in India; there is an appalling under-representation of Dalits, indigenous, and lower-caste groups in India’s leading scientific and technical institutions despite the fact they far outnumber the Brahmin minority. Access to knowledge production systems and to the markets that value this knowledge continue to be blocked by compounded access barriers. More pertinently, it is worthwhile to ask whether those long excluded from particular types of knowledge can truly be empowered upon the terrain of an alien epistemology built in tandem with social and political hierarchies whose very existence relied on scientific and moral justifications of inequality.

Intellectual property regimes purport to be neutral, but at their core, they presume gendered, racialized, epistemological hierarchies. The philosophical underpinnings of the intellectual property rights regime exhibit the binaries that characterize male-oriented epistemologies: male/female, public/private, scientific/primitive, rational/relational (Burk ). Feminist and decolonial ways of being and doing on the other hand, strive to transcend the binaries that naturalize domination and instead emphasize horizontality and mutuality. Feminist scholar Marion Crain (1857) advances an alternative vision of how women exercise power: ‘Power exercised in a community emanates horizontally, expanding outward in a web-like fashion, rather than vertically in a hierarchy (as quoted in Levy and Newman , 119).

In the current Information Age, as forces of capital chart out new public domains from which to generate monopoly rents, human experience and behaviour itself has become the raw material for finished ‘prediction products’ in advertising marketplaces, as Shoshana Zuboff has argued (Zuboff ). Private property is an unsuitable organizing principle for society in the Information Age.

The opportunity to make meaning must be accessible to all on equal terms. In his Guerrilla Open Access Manifesto, Aaron Swartz declared that permitting those at elite universities, but not ‘children in the global South’ to access the world’s scientific and cultural heritage is ‘outrageous and unacceptable’ (Swartz ). And yet, as IP scholar James Boyle points out, much of 20th Century culture is ‘lost culture’. The inordinate tenure of copyright has ensured that copyrighted and commercially are unavailable because they have no identifiable copyright holder who could agree to ‘reprint the books, screen the films or play the songs’. Records are incomplete or absent (Boyle , 9).

As we become aware of the power relations at play in the construction and valuation of knowledge, we should endeavour to create alternative accounts of knowledge and value, rather than simply seek to extend existing protections to disempowered groups. We must attempt to imagine an orientation towards knowledge which values the abstract and relational, and locates value in non-market forms. In other words, we must, as Audre Lorde urges us, forge new tools to dismantle the master’s house.

II.A feminist decolonial public domain

The rampant overprotection of intellectual property empowered by the forces of information capitalism is resulting in the growing privatization and enclosure of the public domain, and the marginalization and devaluation (or susceptibility to ‘theft’) of the knowledge produced and held in disempowered communities. The public domain, for our purposes, consists of the types and uses of information and aspects of culture that remain publicly accessible: free to use without permission or payment.

Legal scholar Deborah Halbert argues () that the public domain is inherently ‘feminine’ because it rejects dualities: it does not privilege a single way of knowing and doing over another.

It builds bridges to alternative ways of knowing, which are not mediated by market-based exchange. Rather, the public domain is built on social bonds – gifts, rather than commodities. It is feminine in the current global gender order (i.e. hegemonic patriarchy) because it recognizes that production is an inescapably communal activity; which makes sharing with the community ‘morally appropriate’ (). Halbert’s conception of the public domain is resonant with Nancy Fraser’s ‘sphere of social reproduction’ (Arruzza, Fraser, and Bhattacharya , 8). The social reproduction sphere encompasses sites upon which the young are socialized, communities built, meaning produced and social bonds forged: in ‘households, neighbourhoods, civil society associations, and public institutions, including schools, childcare and eldercare centers’. This sphere – distinct from that of commodity production and waged labour, is what sustains and makes capitalism possible (Fraser and Jaeggi ). Both conceptions of the social reproduction sphere and the public domain reflect feminist epistemologies; they are sites of subordination – and accordingly, of radical possibility. I invoke these conceptions in proposing what is an expansively feminist, decolonial project: the reclamation of the public domain in service of the social good, rather than in service of commodity production and capital accumulation.

There have been movements within IP scholarship to strengthen and protect the public domain against encroachment and enclosure (Benkler ). Other scholars caution against a ‘romanticization’ of the public domain, which they point out has been a source for the exploitation of the ‘labour and bodies of the disempowered’ (Chander and Sunder ). They propose that there is a dialectical relationship between the public domain and IP, and that the public domain rather than act as a bulwark against propertization, feeds and enables it (Chander and Sunder ). Yet, recognizing that differing resources and circumstances shape the capacity to draw advantage from a commons, enables us to also recognize that the forces that produce these differing capabilities are political in nature (Chander and Sunder ). In calling for a revolt against IP regimes, I mean to attack the institutions that such a politics of hierarchy and exclusion has produced; and in calling for the reclamation of the public domain, I hope to furnish the soil for a different type of politics – one that has nourished the social reproduction sphere and honours feminist, indigenous, and Southern ways of knowing and doing.

We participate in neoliberal capitalism, inter alia, by complying with and honouring the claims of the intellectual property regime – an edifice built on the expropriated labour of indigenous and colonized people, slaves, Dalits and oppressed people everywhere. It is a system built on ownership and exclusion; a means for the forces of financial capital to continuously enclose and appropriate the public domain. Rejecting the constructs and imaginaries of IP law opens possibilities for other organizational forms, knowledge production systems and theories of value that could be de-linked from subordination and extraction. I do not propose a reform of the IP regime or an extension of its protection to the marginal. I do not propose greater use of licenses such as GNU General Public License (Copyleft) or share-alike licenses (Creative Commons), which attempt to expand the public domain without subverting or challenging intellectual property law as an institution. I do not propose to use the master’s tools to create sites of possibility within structures of subjugation.

A reimagination of knowledge production from a feminist and decolonial epistemological standpoint would emphasize authorship and creation as acts of reaffirming the interconnectedness of human sociality. It would reject the idea of authorship as ownership and cultural production as a discrete entity with clearly defined borders, and acknowledge the intrinsically communal nature of knowledge production and consumption. In rejecting capitalist epistemologies and theories of value which are rooted in racism and caste-based patriarchy, colonialism and labour oppression, we hope to instantiate new forms of value drawing from community and the ‘raw power of connection’ (Lorde ).