I'm very pleased to announce that my new book, The Biopolitics of Intellectual Property, is now out in print/electronically on Cambridge UP. Here's a blurb:
"Intellectual property is power, but what kind of power is it, and what does it do? Building on the work of Michel Foucault, this study examines different ways of understanding power in copyright, trademark and patent policy: as law, as promotion of public welfare, and as promotion of neoliberal privatization. It argues that intellectual property policy is moving toward neoliberalism, even as that move is broadly contested in everything from resistance movements to Supreme Court decisions. The struggle to conceptualize IP matters, because different regimes of power imagine different kinds of subjects, from the rights-bearing citizen to the economic agent of neoliberalism. As a central part of the regulation of contemporary economies, IP is central to all aspects of our lives. It matters for the works we create, the brands we identify and the medicines we consume. The kind of subjects it imagines are the kinds of subjects we become"
The CUP page for the book has not just the text as a whole but the chapters (the main ones are a theoretical discussion, and one each on copyright, trademark and patent), and each of the chapters has an abstract. For now, here's a little text from the introductory chapter that should give a better idea of what I'm up to. As you'll see, I want to say something about IP, of course, but also about how I think biopolitics works (in both what I call its earlier, "public," form, and current neoliberalism) and about the fundamental but neglected importance of including law and legal institutions in our genealogical work:
"The core of my argument is that the kind of power expressed in IP is subtly changing. Initial evidence for this claim is that new doctrinal developments have been difficult to incorporate into traditional models of IP. For example, retroactive copyright extension is hard to square with a theory that says copyright is about incentives to create new works. Presumably, Walt Disney will be unmotivated by any changes in IP today. Trademark dilution, which allows action against expression that damages a brand’s image in consumers’ minds, is difficult to square with the standard theory that says that trademark is about avoiding consumer confusion. And the patentability of living organisms and (until recently) isolated genetic fragments is difficult to reconcile with the traditional view that products of nature should not receive patent protections. In cases such as these, I will argue, it is necessary to recognize that IP is performing a different and new social function, one that requires a rethinking of the kind of power expressed by IP laws and regulations.
"I take my theoretical starting point from the work of Michel Foucault, for whom modern power has operated in two basic forms. The first, associated with the social contract tradition, conceptualizes a rights-bearing, juridicial subject, for whom law operates as a system of constraint and coercion. That which law does not prohibit is allowed, and the most important questions revolve around the limits to law’s ability to prohibit. The second, associated with the modern, administrative state, Foucault calls “biopower” or “biopolitics,” and it is concerned with productively managing and even optimizing populations through such measures as public health and education programs. Biopower is thus fundamentally generative. Closely aligned with the rise of capitalism, biopower has emerged as central to the operation of the modern state, which tends to emphasize regulatory agencies and administrative law, even if it also retains a framework of judicial rights.
"In the years since Foucault’s death in 1984, it has become clear that biopower has at least two forms. One is concerned with the productivity of populations in a general sense, and can be seen in large-scale, publicly funded infrastructure programs. The second, a neoliberal variant, attempts to achieve many of the same results by directly incentivizing individual behaviors. The strategies and techniques of neoliberal biopolitics derive from an extension of economic reasoning to all factors of life. If classical liberalism attempted to allow markets to function, neoliberalism not only tries to create markets where previously there had been none, it also understands problems and regulations only insofar as they are presented in market-oriented terms. Individuals are no longer rights-bearing subjects or equivalent members of a population; instead, they are understood to be economically rational agents, seeking to maximize their own outcomes. Good policies are those which are efficient in facilitating this process. For example, if developing human capital is a goal of government, then citizens need to understand themselves as involved in developing their human capital; a decision to pursue education or good health practices should be something that people make on the basis of expected returns on that investment. Similarly, people should avoid behaviors that are likely to damage their future earning capacity. This process of subject formation, accomplished through a complex web of nudges, pushes, legal strictures, environmental and architectural restraints, works to create the sorts of individuals who most easily work toward neoliberal biopolitical aims.
"A quick look at the US Constitutional text suggests that IP exists at the nexus of juridical and public biopower. The goal – progress in the arts and sciences – is clearly biopolitical, but the mechanism – property rights – is juridical. It is my central contention that IP has shifted markedly (if unevenly) in the last twenty years or so in the direction of neoliberal biopolitics. Even when they were economically justified, earlier iterations of IP functioned much more along the public biopower model, attempting to improve the welfare of the public as a whole, with provisions such as limits on term length designed to ensure that the public benefited as much and as quickly as possible. Neoliberal IP maintains the idea of welfare enhancement, but it grants many more rights to producers, and instead of benefiting the public at large, it increasingly targets individuals in the public directly, reconceptualizing them as consumers and their welfare in strictly economic terms.
"At the same time, the expression of power in IP is deeply contested within the very institutions through which it operates. For example, the Supreme Court’s patent jurisprudence has repeatedly insisted that IP is to be treated juridically, through standard judicial norms and vocabularies. Similarly, §1201 of the Copyright Act, which prohibits the circumvention of copyright protection technologies, has operated in practice to allow copyright owners to regulate how copyrighted material is consumed, strongly nudging individuals to approach this material only as paying customers, not as members of a more amorphous public. At the same time, the Copyright Office carves out periodic exemptions to the law for such public functions as education.
"I thus trace, primarily through a series of studies of IP litigation, the contours of both the shift in statutory IP toward a neoliberal biopolitics and the various forms of resistance and contestation that it has produced. The book’s case studies cross a range of interdisciplinary sites, from the permissibility of music sampling, to whether association with sex damages the brand of Victoria’s Secret lingerie, to the metaphysical status of isolated gene fragments. Drawing on the resources of law, philosophy, and critical social theory, I develop the vocabulary and theory for a more nuanced understanding of both IP law’s development and what it actually does. As it moves unevenly toward expressing neoliberal biopower, IP becomes more immediately involved in producing and directing the lives of individuals. Specifically, it moves toward fostering forms of subjectivity that take market-relations as normal, that approach issues of culture and life as appropriately mediated by markets, and that treat the appropriate relation to cultural goods as that of consumer. This is in sharp contrast to earlier understandings of IP, which spoke in terms of the rights of creators, or of the need to remove obstacles to markets, or which worried about the deleterious effects of artificial monopolies. IP, then, makes people. Its current, neoliberal version increasingly tries to make people conform to the image of idealized economic agent, always and already participating in a society which is intelligible only in market terms" (9-11).
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