University of Swansea, Student No: 570886

MSDM04: Political Economy of Media

Word Count: 4902

Intellectual property laws institute a market economy in information. Critically discuss.

Introduction

In this paper, I aim to discuss whether intellectual property laws institute a market

economy in information i.e. to consider the impact of intellectual property laws on the

constitution of a market economy in information. To do justice to this broad topic in a

limited amount of space and time, I will conduct a broad examination of the relations

between intellectual property laws and the market economy, using several approaches

from the field of political economy. Political economy, as “the study of social

relations, particularly the power relations, that mutually constitute the production,

distribution, and consumption of resources” (Mosco 2009:2), highlights the forces at

work that bring about the law and the processes in the marketplace, to reveal any

inequalities. The “resources” are the tangible products of intellectual property owners

in physical media and technology, and the intangible, including software code, linked

to the institutions – of producers, publishers and manufacturers, wholesalers,

distributors and retailers, and end customers or consumers.

In a political economy where knowledge is not only power but also a source of profits

in modern global markets (Drahos and Braithwaite 2002), the role of intellectual

property law, the rights conferred to whom and for what, has become a critical

undertaking. In this respect, I am highlighting specific arguments raised in the book

Information Feudalism: Who owns the knowledge economy? (Drahos and Braithwaite

2002) on the impact of intellectual property laws and the key role played by the

institutions operating behind intellectual property regimes. My hope is to broaden the

debate on the political economy in intellectual property laws and update some of these

discussions.

1

Due to a lack of space, broader topics involving intellectual property laws and the

market economy, which are also important to the overall consideration of the political

economy of information, will not be covered in this paper. Particularly - (1) the broad

context of intellectual property laws1 having a profound global impact on global

political economy2 in the last three decades (Braga, Fink, and Paz Sepulveda 2000: 3-

32; Maskus 2000) and (2) the continuing inroads that intellectual property laws will

continue to make into new advances and developments in digital technology and

biotechnology3 (Goujon 2007: 123) into the future.

Firstly, I will discuss the market economy of information, or better known as the

information society (Section 1). Secondly, I will address the impact of intellectual

property laws on society as an investigation of the relationship between law and

society (Section 2). Thirdly, I will discuss some of the arguments raised in the book

Information Feudalism and provide an updated reading with a few recent examples

(Section 3). This will be followed by a brief conclusion.

Section 1: The market economy of information

A market economy in information is a reference to “the information society” (May

2002: 6) (Mattelart 2003: 1)4 – a term which has fallen into common usage to explain

“a shift in Western economies from the production of goods to the production of

innovation” (Berry 2008: 43).

1 There is a long history of intellectual property laws impacting the global market economy - “In 1984, the United States designated inadequate protection of patents, trademarks, and copyrights as an unfair trade practice that could invoke retaliation under Section 301 of the Trade Act of 1974. In the ensuing 16 years, intellectual property rights (IPRs) have moved from an arcane area of legal analysis and a policy backwater to the forefront of global economic policymaking. Indeed, the world is witnessing the greatest expansion ever in the international scope of intellectual property rights.” (Maskus 2000:1) 2 Based on World Bank figures, the global foreign direct investment (FDI) stock - a measure of the investment underlying international production – increased fourfold between 1982 and 1994; over the same period, it doubled as a percentage of world gross domestic product to 9 percent. In 1996, FDI flows to developing countries amounted to $110 billion – corresponding to roughly one-third of world total FDI inflows, although the FDI flows were concentrated among a few countries. (Braga, Fink, and Paz Sepulveda: 3-32) 3 Multiple sources from different fields are available to support the profound impact of intellectual property laws in our lives – “...the introduction of new standards of intellectual property protection during the last twenty years, has had a profound impact on the sharing of data and resources in the field of life sciences”. (Goujon 2007: 123) 4 Armand Mattelart’s Information Society: An Introduction is an excellent review of the discourse around the idea of “information society” and the promises of democracy and freedom, the assumptions of economic reward and the geopolitical construction that surrounds it. (Mattelart 2003: 1-4, 129-159)

2

It is argued that the shift described is an effective transition from a Fordist5 industrial

mass-production economy to a post-Fordist6 digital information and technology based

economy (Hardt and Negri 2000: 290). It is characterized by a shift to the production

of low-cost, high volume commodities based on information that has created a surplus

of goods and services; which in turn creates a market economy in the consumption of

information, communication and knowledge (Berry 2008; Drahos and Braithwaite

2002; Mattelart 2003; May 2002; Tonkiss 2006). Consequently, it is argued that

society has moved from a labor theory of value to a knowledge theory of value

(Mattelart 2003: 78). This shift creates a tension that is exhibited in various ways – in

the polarizing skills of high tech and routine production or, the value of off-shoring as

compared to mass commodity production by exploited workers (Tonkiss 2006: 104).

The idea of the post-industrial society, where “social structure can become post-

industrial regardless of political regime or cultural configuration” (Waters 1996: 108),

is support for the argument of a returning to a feudal or tribal post-industrial society

(Drahos and Braithwaite 2002: 201). The skeptics view is that the promise of the

changes to society due to an information society by governments and politicians is not

based on empirical evidence (Berry 2008: 47), that the idea of the information society

makes it easy to slip into technological determinism (May 2002: 27), and the public is

being “sold” the information society construct of a hegemonic economic system. It is

argued that the information society in the cultural logic of the final throes of late

capitalism (Jameson 1999: 87) or the lapse into information feudalism (Drahos and

Braithwaite 2002: 201). However, there is some common ground that “quantitative

changes in information are bringing into being a qualitatively new sort of social

system” (Webster 1995: 9). Equally, the common mistake is to put the promise of the

information society before the idea of an information society. The result is failing to

consider the complex amalgam of technological, economic, occupational, spatial,

cultural and qualitative or quantitative elements of the information society (Webster

1995: 8-9).

5 Mass production in a Fordist era meant there was a certain reliance on sufficiency of demand, and the need to received feedback from the market to improve production was limited. (Hardt and Negri 2000: 290)6 Post-Fordist era is based on the Toyota model where the planning for production involves communication with the markets constantly and immediately (Hardt and Negri 2000: 290)

3

The question being asked, about the role of intellectual property law, the changes

precipitated by intellectual property law, and the impact of legal changes to the world

economy, has also become an increasingly important debate (Berry 2008; Drahos and

Braithwaite 2002; May 2002). The legal changes are built on the passage of global

intellectual property laws, regulations and multilateral treatises, and the rise of a

global intellectual property regime that has promised a new economy based on high

technology, knowledge creation and innovation. Law and technology makes strange

bedfellows since this optimism for a new information economy has tended to draw

upon arguments with a tendency towards technological determinism to justify its own

predictions and prescriptions (Berry 2008; May 2002) without the necessary empirical

evidence or due diligence required to deliver the promises of an information society.

The danger of this myopic perspective is the unintended consequences of introducing

technology for the sake of technology on an empty promise of economic reward.

Section 2: The impact of Intellectual Property Laws on Society

E.P. Thompson sums up the relationship between law and the market economy:

The greatest of all legal fictions is that the law itself evolves, from case to

case, by its own impartial logic, true only to its own integrity, unswayed by

expedient considerations (Thompson and Great 1975: 250).

Intellectual property refers to patents, copyrights, trademarks and trade secrets which

are employed to protect the intangible fruits of intellectual labor either as industrial

(patents protect the idea), and literary or artistic (copyrights protects the expression of

an idea) works (Cotter 2003: 1-6)7. Knowledge, usually intangible and incorporeal,

becomes subject to ownership through intellectual property rights, and treated like

material property. An analytical category of “immaterial goods”(Berry 2008: 54;

Hardt and Negri 2000: 290) is useful to distinguish the manipulation and organization

of information through enclosing techniques, such as intellectual property rights,

encryption technology or digital locks (Berry 2008: 54).

7 This is the modern legal definition of intellectual property found in most law textbooks. Intellectual property was called “industrial property” prior to the emergence of the modern term. (Cotter 2003: 1)

4

Intellectual property laws are arguably a mode of organization in an environment,

where “immaterial” goods or services (Hardt and Negri 2000: 290) are not afforded

the same protection of intellectual property laws afforded to material goods due to

potentially infinite resources from the universal digitization of information and that

price is not the dominant factor with the plethora of free products and services

competing with material goods and services. The old model of scarcity (May 2002:

79) and price is thrown out of the window. The control over scarcity (May 2002: 79)

has become an increasingly important factor to consider in an information society.

One perspective of social change is the examination of “how power is used to shape

the production, distribution, and use of information as a commodity”(Mosco and

Wasko 1988: 3). In a capitalist society, the motive of profit from the sale of

commodities in the market is a primary driving force. The institutions and actors

involved in the many stages of this process also exert their own power over the entire

system, which in the case of intellectual property is a global regime. Broadly

speaking, there are two main justifications for the capitalist ownership of knowledge -

the promotion of the efficient use of resources (May 2002: 167) and as the reward for

intellectual property labor (Jones 2001: 785). In an industrial age, intellectual

property rights have in itself become specialized forms of knowledge, and have come

to embody the hegemonic means by which the use of knowledge is captured in

corporeal forms (Jones 2001: 884).

Prior to the existence and rise of intellectual property laws, what did we do with the

fruits of our intellectual labor? It is helpful to have a historical reference point for the

pre-modern construction of intellectual property as “mental or creative labor”

(Sherman and Bently 2000: 3). Prior to the 1850s, there was no clear consensus in

pre-modern law as to the mode of organization for mental or creative labor. While

property rights in mental labor existed, its nature or category was questionable. The

pre-modern legal treatment of property rights in mental labor was “largely determined

passively in response to the environment in which law operated” (Sherman and Bently

2000: 3). Using this historical context, it is argued that the consequence of modernity

is the legal treatment of intellectual property shifted, from the labor it produced, to the

consequential impact of the labor.

5

The significance of this subtle shift is that the law is no longer concerned about legal

interpretations and language construction, but instead “employed the resources of the

political economy and utilitarianism” (Sherman and Bently 2000: 4). If the drafting

and eventual passing of intellectual property laws are bound tightly to the creation of

a political economy in digital media and technology, then it becomes even more

critical to understand how the law is impacting social relations. This coincides with

the line of argument going back to Heidegger that “technology is a special form of

knowledge – a form of truth or disclosure” (Berry 2008, preface xi).

If law is focused on the consequential impact of the labor, what does this look like?

The global harmonization of intellectual property laws is a good example of the

economic base overtaking the autonomy of the superstructure of law and government

(Horkheimer and Adorno 2002: 234). Global organizations such as the World Trade

Organization (WTO) and the World Intellectual Property Organization (WIPO), using

the TRIPS induced quasi-governmental powers to harmonize legislation within its

signatory states and across national boundaries, had resulted in intellectual property

rights that “are recognized only when knowledge has the potential to generate profits,

through economic activity” (Jones 2001: 785).

To follow through the argument, the superstructure is colonized by the economic base

and turned into the culture industry (Horkheimer and Adorno 2002: 32). Intellectual

property rights are standardized through the TRIPS process globally, and it creates a

market for the protection and enforcement of intellectual property right in return for

patent fees, trade mark registrations and copyright filings received by the state.

Where the private colonizes the public, work and leisure is subject to the same

conformity due to an industrialized logic, described as the “social totality”

(Horkheimer and Adorno 2002: 234). We can argue further that intellectual property

rights is analogous to a new bureaucracy except, it is a global bureaucracy aimed at

the commoditization of knowledge, ideas and innovations, located in the public realm

(or intellectual commons), into private rights.

6

The imbalance between private reward and public interest is criticized (Drahos and

Braithwaite 2002: 165), and sometimes identified as intellectual enclosure (Ertuna

2009: 1-7)8, when socially available (public or traditional) knowledge is incorporated

into new products, and subjected to ownership rights (Jones 2001: 785). This “social

totality” big picture view is helpful in exposing intellectual property law and the

institutions involved, as the pervasive power of industrial logic. From this analysis,

one can see the attraction of the argument in favor of an Hobbesian interventionist

sovereign state (Jones 2001: 689) to redress the imbalance between private interest

and public reward. It has been argued that intellectual property laws and its global

regime have arguably created a global information mercantilism9 (Macdonald 1998:

31), and the argument for the direct intervention by the state in the economic sphere to

promote state interests, can be made as a result.

Section 3: Information Feudalism

In their book “Information Feudalism” (Drahos and Braithwaite 2002), the authors

draws our attention to the central role played by intellectual property laws to create of

entrenched intellectual property regimes resulting in global inequalities, enforced by

global organizations such as the World Trade Organization (WTO) and the World

Intellectual Property Organization (WIPO), wielding TRIPS (the Agreement on Trade

Related Aspects of Intellectual Property Rights) as a blunt instrument in cohort with

the vested interests of governments and multinationals. It is argued that the impact

can be seen in developing countries, being kept in a state of medieval feudalism

(Drahos and Braithwaite 2002: 1-2, 198-199, 219) and the stalling of the progress

from industrial to post-industrial stages of development. Intellectual property laws

are employed as tools of the intellectual property owner to lock up critical access to

knowledge on education, software, genetic and plant varieties, when such access to

information is crucial in a knowledge society (Drahos and Braithwaite 2002: 17).

8 Irmak Ertuna in her online article Digital Pirates and the Enclosure of the Intellect examines the space of contestation between amateurs, artists and students of digital technologies to develop new tools to share and distribute knowledge with actors of capitalist governance such as the WTO, and trade organizations representing the dominant copyright industries of music, film and software. 9 An example of information mercantilism is the national security export controls employed by Western countries, especially in the United States, to prevent the acquisition of technology with both military and commercial application by the Soviet bloc. (Macdonald 1998: 31)

7

It is argued that condition that is “information feudalism” (Drahos and Braithwaite

2002: 198) puts development countries at a serious disadvantage. This is achieved

and maintained through the hegemony of international standards of intellectual

property and the rigorous policing of these standards, with the promise of more local

investment and innovation. Drahos and Braithwaite points to the increased term for

patents, from life of the author plus 50 years, to 70 years, as one example of

intellectual property owners and governments extending the monopoly of patents,

without any corresponding benefit for innovation or opportunity for more investment

(Drahos and Braithwaite 2002: 11). The cost to Australia of extending the patent term

may be as much as Aus$3.8 billion (Drahos and Braithwaite 2002: 11). Even those

who have put up a spirited defense of intellectual property based on arguments of

economic pragmatism, and natural law and justice, have acknowledged that laws such

as the Copyright Term Extension Act have overreached in recent years and has gone

too far (Spinello 2009: 2).

The attraction of Draho and Braithwaite’s arguments is based on the simple notion

that the entrenched power of intellectual property regimes is due to globalization

forces. The basis of this argument is entirely dependent on the north-south divide –

the western world against the developing countries and the impact on the global south

(Drahos and Braithwaite 2002: 209). While this helps to explain the effects of

entrenched powers, it does not explain how the power arose in the first place, why

power became to be entrenched and ignores the complex processes and systems

involved in the negotiation and implementation of TRIPS. This has opened up their

arguments to be criticized because “it does not elaborate on the strategies,

mechanisms and processes through which these groups secure their interests in the

international trading system (Pugatch 2004: 4)”. The fact that there are powerful

lobby groups acting for intellectual property groups to push for stronger protection of

global intellectual property rights, takes the argument no further than to highlight the

existence of processes and systems (TRIPS) as part of an global intellectual property

forum and arena (WTO/WIPO) as part of the “as is” situation. It is argued that this

does not explain why power is entrenched in a global process and system and the role

of the various actors and players.

8

The use of “information feudalism” is intentionally polemic and stirs controversy by

painting intellectual property owners with the same brush as feudal landlords and

reminding us of the injustice of the medieval system in the redistribution of property

rights (i.e. land), and therefore, the potential abuse of power in society (Drahos and

Braithwaite 2002: 201). By simplifying the argument, the accuser may be guilty of

the same misconceptions as the accused. The argument made by Jameson of the

integration of aesthetic and commodity production leads to a convergence of the

structure, function and position which directly impact on the nature of innovation and

experimentation sheds more light on the entrenched position of intellectual property

regimes in a knowledge economy (Jameson 1999: 56).

Therefore, it can be said that intellectual property laws and their constituent regimes

are arguably a reflection of postmodernism, or more specifically, intellectual property

laws are arguably the cultural logic of late capitalism (Jameson 1999: 56). The

purpose of TRIPS, in setting minimum standards for intellectual property laws for

member countries to meet their obligations, is to commoditize cultural products

towards promoting certain economic and social objectives. While TRIPS encourages

nations to pursue their own goals in intellectual property rights, the major constraint

imposed on nation states is that they “cannot discriminate against foreign interests and

cannot seriously prejudice the exploitation of IPRs [Intellectual Property Rights] by

foreign firms (Maskus 2000: 176).” It is argued that the colonization of the global

cultural sphere through the capitalist infrastructure of global intellectual property

regime is certainly more chilling of an effect, than the return to feudalism. Feudalism

can be dealt with by the ouster of landlords, but postmodernism or the cultural logic

of late capitalism is a much more complex animal to decipher, dissect and disrupt.

There are clear signs of a backlash against the hegemony of the global intellectual

property regime, raising questions about the efficiency argument and the growing

dissent based on unfairness and injustice in the application of this capitalist mode of

organization. A case in point is the Special 301 process, implemented by the United

States Trade Representative (USTR), as an extension of the Executive Office of the

President, responsible for bilateral and multilateral trade negotiations.

9

The USTR basically maintains a list of foreign countries on a “watch list” for

intellectual property piracy, based on data provided by the US copyright industries

(music, movies, software, books, entertainment, etc). Employing “a mechanism of

enforced coercion” (Drahos and Braithwaite 2002: 93), the USTR pursues a relentless

agenda of bilateral trade negotiations. The industry data is compiled by the

International Intellectual Property Alliance (IIPA), currently more than 40 countries,

and it makes recommendations on which country goes up or down the “watch-list”

and who is favored or not (Smith 2010b). This is invariably a legalistic, technical,

bilateral process of little interest to anyone else.

Quite surprisingly, the IIPA raised the hackles of the blogosphere (Anderson 2010;

Guadamuz 2010) through its Feb 2010 filings to the USTR related to the issuance of

an Indonesia government circular on the “Utilization of Legal Software and Open

Source Software (OSS)”. IIPA argued that the circular is an unfair preference for the

use and adoption of open source software within the Indonesian government (Smith

2010a) in the context of organization piracy. The position taken by IIPA is a clear

sign that the IIPA, the USTR and the US copyright industries are out of touch with

current trends, considering that the UK government procurement policy for open

source software takes the same position as the Indonesian government, as per Tom

Watson MP, Minister for Digital Engagement:

Open source software is not a cure-all remedy and is not the only solution to IT

questions. However, by levelling the playing field and allowing Open Source

to be as competitive as possible we can ensure that taxpayers get maximum

value for money from Government IT, something that is more important than

ever during the worldwide financial climate (Cabinet Office 2009).

The inability of organizations such as IIPA, WTO or WIPO to keep pace with free

culture and open source movements is compounded by the criminal actions brought

against Swedish bit torrent website, The Pirate Bay in 1998 (Kravets 2008). At the

height of the lawsuit against The Pirate Bay, the overall consensus in the mainstream

news and blogosphere is that this is yet another missed opportunity by US copyright

industries to adapt to a new media climate, due to the inflexibility of its position on a

file-sharing as a legitimate business model (Riley 2009).

10

More recently, the debate on the UK Digital Economy Bill, originally aimed to

improve the abysmal nationwide broadband network speeds in the UK, degenerated

into the UK government’s capitulation to the lamentations of Feargal Sharkey (among

others) in favor of addressing file-sharing and “piracy” (Naughton 2010). These

debates show a growing dissent based on a public recognition of the entrenched

preference given to copyright holders who are free riding on government granted

monopolies without due consideration given to the changes and needs of a new media

society. This imbalance is raising questions about unfairness and injustice resulting

from a longstanding hegemonic capitalist mode of production.

Conclusion

There are many views of the relations between law and the market economy. One can

argue that the law is not merely superstructure and it is not possible to separate law

from the base of the market economy, and consequently, law and productive relations

are ‘imbricated’ or overlapping (May 2002). In this respect, intellectual property laws

are able to structure productive relations and to legalize commoditization. It is also

argued that intellectual property law and multilateral agreements (such as TRIPS)

creates an entrenched position for their owners with huge profits for US multinational

corporation through the use of strong-arming tactics in a global political and

economic sphere (Drahos and Braithwaite 2002).

One of the recent perspectives offered is that “an information-based society arises as a

material formation through conscious political action and government commitment on

the one hand and corporate activities on the other (Berry 2008)” – in short, the idea of

the information economy (or what is described by Mosco as Pushbutton Fantasies

(Mosco and Wasko 1988: 4)) has taken hold in society, and being transplanted into

the fabric of the new information society through public discourse blinded by

technological determinism and the changes made by law to ideas of ownership of

knowledge, and the utilization of information.

11

All of these views are making a critical contribution to an ongoing debate, in which

the outcomes or conclusions are yet to be foretold. While we are certainly in the

course of creating an information market economy, but this may not necessarily

represent an information society – since the price to be paid for the information

society being promised by governments, politicians, and policymakers may involve an

unfair and unjust exchange in terms of individual control, ownership and freedom.

In a capitalist mode of production, the idea of the information society is the ownership

of knowledge and the utilization of information. The role of intellectual property and

its constituent global regimes is the capture of intangible ideas, including ephemeral

ideas floating in the intellectual commons, and commoditizing such ideas as tangible

property for economic profit. Therefore, it is fair to say that intellectual property laws

not only institute a market economy in information, but it is a unique political

economy that plays a critical role in the constitution of a market economy in

information society and the future of ideas in the marketplace.

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