In Shamans, Software, and Spleens (1996) James Boyle offers a critical social theory of intellectual property. Coming from a background in law, Boyle argues that discourses of entitlement in our information society have largely gone untheorized, and that current approaches to intellectual property are almost exclusively based in microeconomics. Mainstream economic analyses, he argues, are insufficient because they take up a “commodity perspective” that narrowly focuses on the “optimal level of production” (p. 37). Because of this narrow focus on profit, economic analyses tend to obscure or ignore entirely the social and political aspects of intellectual property issues. Boyle sets out to offer an alternative, political economy approach to intellectual property. Throughout the book he reveals the ideological tensions within our current understandings of information regulation and the public domain, and investigates how the romantic conception of authorship has been used to reconcile these tensions.
Boyle’s project, then, is to map out a political economy approach to IP. His ultimate argument is that when seen through a political economy perspective, the framing of IP issues through a romantic notion of authorship not only leads to a less productive system, but is also unfair ethically because it tends to privilege certain groups over others. In Boyle’s words,
My point is not that we always need fewer intellectual property rights, or that we always need more intellectual property rights. Rather, my point is not [sic.?] that an author-centered system has multiple blindnesses and that we should strive to rectify some of them. In general, these blindnesses result in the creation of too many intellectual property rights, because a strong author-centered system minimizes the importance of the public domain, and conceives of information issues predominantly from the incentives point of view. But these blindnessess also result in the undervaluation of nonauthorial contributions to the production process, often in a way that would curtail the possibility of future production, or in the suppression of the interests of the audience or the market for the product. (p. 169)
I would add to these examples Kevin Greene’s (2010) analysis of the ways in which black American musicians—particularly women—have been systematically denied IP rights to their work. Their cultural products were routinely categorized as “sources” for white author/musicians.
I agree with Boyle that deciding what constitutes either “author” or “source” is deeply ideological, and this process of defining tends to give financial reward those who are already in positions of race, gender, or class privilege. Using authorship as the dominant frame for IP is problematic because the legal system often fails to recognize and interrogate the ideological values behind our conception of authorship.
So I think I spent too much time summarizing and not enough doing analysis, but I feel like it is time to wrap this post up.
1. Boyle’s book provides a “road map” for analyzing the social and political aspects of information regulation. He discusses some of the ways he would like to see our system change, but points the reader to the Bellagio Declaration as an example of how the current approach to IP might be revised. What did you make of this document (p. 192-200)? Do you think that its suggestions for change are consistent with Boyle’s analysis?
2. Our information society has changed since 1996. I think about big data, SOPA/PIPA, and the debate over who owns the online user information harvested by corporations like Facebook and Google. Boyle’s fear of “information overload” (p. 179-180) baffles me, but generally I find his book useful to thinking about current IP issues. In what ways, if at all, has Boyle’s “road map” helped you to rethink your understanding of current information issues?