The fundamental question of intellectual property law is whether it CAN restrict down the inevitable, excessive, and memetic drive of collectives, NOT whether it SHOULD---identifying this inevitable excess of the Accursed Share requires “unequivocally affirm[ation]” through questioning the vocabulary of the resolution itself---vote negative as copied art without limits.

Abstract (EN): Intellectual property law is concerned with control over the production and distribution of copies (“materially fixed expressions”) of ideas. Copies are in fact ubiquitous and the attempt to situate copies within a certain discourse or discipline relies on particular philosophical decisions that can be shown, historically and otherwise, to be finally political and ideological. If the copy always evades and exceeds disciplinarity, including “multidisciplinarity” and law, what do we do about these copies that are ultimately depropriated, that is, lacking a “proper” place or location, yet nonetheless recognizably present? The author explores the work of French filmmaker Jean-Luc Godard as an example of an attempt to think and make a copy-based art that refuses the logic of IP, and argues that legal scholars need to consider broader issues of political economy when debating contemporary IP law.

Résumé (FR): Le droit de la propriété intellectuelle s’intéresse au contrôle de la production et de la distribution de copies d’idées («fixations matérielles de l’expression»). Les copies sont omniprésentes et la tentative de les situer à l’intérieur d’un certain discours ou discipline dépend de décisions philosophiques particulières dont on peut, de façon historique ou autre, finalement démontrer le caractère politique ou idéologique. Si la copie se soustrait toujours à la disciplinarité—y compris la «multidisciplinarité»—et au droit, et les dépasse, que pouvons-nous faire de ces copies qui sont ultimement désappropriées, c’est-à-dire auxquelles manquent une place ou un lieu «propre», mais qui sont toutefois visiblement présentes? L’auteur explore le travail du cinéaste français Jean-Luc Godard en tant qu’exemple d’une tentative de penser et de créer un art basé sur la copie qui refuse la logique du droit de la propriété intellectuelle et soutient que les spécialistes du droit doivent considérer des problèmes d’économie politique plus larges lorsqu’ils débattent du droit de la propriété intellectuelle contemporain.

A. INTRODUCTION

I wrote a book that was published about a year and a half ago called In Praise of Copying. 1 I wrote the book because it seemed to me that all around me, there was a proliferation of practices of copying, particularly by students I worked with, but very little by way of a justification of these practices, which tended to be engaged in with a sense of guilt, below the radar of the law. When they were justified, as in the case of the important work by Lawrence Lessig and James Boyle, it was through a quite cautious affirmation that stressed the importance of IP law, while arguing for quite modest adjustments that would allow certain kinds of sharing to happen, in the name of creativity.2 The kinds of sharing, particularly of music, that people were and still are engaging in went far beyond what Lessig and Boyle argued in favour of. And I became fascinated by the radical gap between legal discourses concerning copying, and the actual practices of copying that people engage in today in everyday life. On closer inspection, the relatively limited framework of copying that is recognized as such, whether affirmatively in the case of hip hop sampling or literary citation, or negatively as in the counterfeiting of branded goods or the appropriation of indigenous cultural forms, appeared to me as part of a much broader set of practices or processes that could equally be described as copying. These would include: the generalized phenomenon of language acquisition by humans and non-humans; the principle of economic equivalence, by which one thing is established as having the same value as another thing (termed economimesis by Jacques Derrida3 ); the sexual (or asexual) reproduction of organic life forms as variations or permutations of the DNA molecule; and so on.

I became intrigued by the relationship between laws that regulate copying and philosophical and anthropological descriptions of copying practices. I was particularly struck by the work of René Girard, who makes a grandiose but compelling argument that mimesis is the fundamental problem faced by human beings, who are constituted as such through a drive to imitate, but who at the same time struggle to establish their separate and individual identities. For Girard, violence is the result of this struggle for originality or authenticity or ownership (both of self and object of desire), and the law attempts to moderate claims to identity and ownership, while at the same time enacting the cathartic process of scapegoating certain individuals as being responsible for the evils of mimesis.4 For my purposes, those who violate IP laws are scapegoated as engaging in illicit acts of “copying,” so that the rest of society may enjoy the cathartically produced (but illusory) sense of being innocent of copying themselves.

Girard’s work raises a fundamental question, one that is relevant to the topic of IP and interdisciplinarity: what is the place, field, or form in which the problem of imitation can be responded to in a human society? Law would be one structure that attempts to appropriate or organize mimesis. Art would be another. Economy would be a third. For Girard, only religion, and more specifically a Christian practice of counter-sacrifice, can respond adequately. I would like to radicalize or at least open up the problematic as set up by Girard, through the work of Georges Bataille, and his notion of “the accursed share” by which Bataille means the excess that is always present and must always be disposed of in some way by any human society.5 This excessive “share” is “accursed” because it is generally forbidden or tabooed; yet, at certain key moments, the taboo is reversed and the share must be used up. For example, violence is forbidden in most societies, yet becomes mandatory when there is a war. There are reasons to question whether “excess” is the best word for this thing that can’t be organized or framed, but if one thinks about mimesis and therefore copying in terms of the problematic set out by Bataille, the question is raised: is there indeed a generalized taboo on the excessive but inevitable proliferation of copies that is being enacted, or contained, at present through IP law? And what is the relationship between IP law and this more general taboo? One place to look for this connection is in the concept of moral rights, which is often raised, both legally and otherwise, as the justification of IP law. I hope you can see that the problem of interdisciplinarity is raised here: the law is only one of a number of structures by which humans seek to contain practices of copying in particular societies. Intellectual property law is itself only 300 years old, and belongs to a very particular set of cultural histories, specific to European and North American modernity, but is now being elevated to the status of a universal in the age of globalized capital.

Presenting this kind of material to legal scholars I feel naïve. I am not making an argument against the existence of the law either in general or specifically in the case of intellectual property. I am questioning whether the law can do what it ostensibly sets out to do, which is to regulate the production of copies. If the answer to this question is affirmative, then one needs to explain why copying proliferates to such a radical extent beyond the reaches of the law. Is this just a matter of a lack of fine tuning the law such that it is able to address all situations? Or is it a problem of enforcement such that there is simply a lack of political will to track down and prosecute all IP law violators? Of course, one could say that we are continually acting in a social and legal space in which our actions are made with only a general awareness of the actual nature of the legal code that governs that space. The entire range of legal mechanisms in our society come into play in articulating, testing, disputing, and enforcing the specific discursive/legal meaning of acts and events that remain opaque in the moment of their lived reality. If the answer is negative, meaning, to repeat, that there is something about the production of copies that will always remain beyond the capability of the law’s ability to regulate, it would be important to unequivocally affirm that. Fair use and the public domain are ways of articulating a margin of unregulatability. They are typically justified with reference to the needs of the liberal subject, the affirmation of a public space tended by a liberal-democratic state. These needs and this affirmation are in turn limited by those of commerce and private interest. But the limits of fair use and the public domain are breached so regularly today, and the terms are so often invoked in situations where in fact the rights implied by these concepts no longer exist, that we should at least question whether they remain an appropriate vocabulary for enframing debate about IP.