James Boyle's (1996) Shamans, Software, and Spleens is focused on the questions and concerns around the intellectual property rights that constantly is challenging the emerging "information society." The author raises questions like how is information commodified and who owns it? How do intellectual property rights function as an incentive for research, and consequently lead to the creation of more information? Can genetic information be "owned" by someone other than the person from whom the genes or cells came
from? Boyle looks at the issues and complexities in the free market, and the public and private spheres and quoting Boyle his work "is an analysis of the social construction of reality" (p. x).
Boyle's (1996) central thesis is how the law concerning intellectual property rights is embedded in the notion of the "romantic author." Boyle uses case studies of intellectual property right law ranging from software, to blackmail, to insider trading, to spleens to illustrate how the idea of the romantic author comes into play in each of these discourses. Further, he signifies that this notion creates a complexity regarding where the division between expression and idea lies within the law. Boyle states that the idea of the romantic author has emerged through the debates over copyright in Germany in the late eighteenth
century. The copyright that emerged stated that an author had to be special in a specific kind of way. The romantic author was the transformation of genre, the revision of form. As Boyle specified,
"It is the originality of the author, the novelty which he or she adds to the raw materials provided by culture and the common pool which "justifies" the property right and at the same time offers a strategy for resolving the basic conceptual problem…what concept of property would allow the author to retain
some property rights in the work but not others?" (p. 54)
Boyle then indicates the problems of property rights where copyrights are awarded to those who fulfill the idea of romantic author in present law and in court. He suggests a reformation of current intellectual copyright laws as not only more concern for the public domain is required but also as copyrights are constructed around the idea of authorship, where only certain kinds of contributions are recognized (p. 168). In addition, he suggests implementing a property rights system, which is subject to periodic auditing to determine if the intellectual property right is providing too high or too low an incentive to future
production and research (p. 172).
Boyle has used several case studies to illustrate how the idea of romantic author plays out. I am particularly fascinated by the case of Moore vs. The Regents of the University of California where the court decided not to allow a man the rights to genetic material from his own, even though removed spleen. This example clearly illustrates how the power/knowledge nexus works through the idea of the romantic author that comes into play in the discourses. Boyle signifies that "The court thought that Moore did not exhibit that mixture of arcane labor and dazzling originality that we associate with the romantic author" (p. 106). Consequently, from the perspective of the romantic author Moore's claim not only possesses hindrance to research (which is signified to serve the greater cause- under dominant ideology) but also "attempts to
privatize public domain" (p. 107). The scientists who used his spleen did display the characteristics of originality, creativity, and labor and thus a perfect fit for the image of romantic author. Therefore, as Boyle concludes, it is the rhetoric of the romantic author, which provides justifications, in the eyes of the law, of intellectual property rights. My critique is that it is very much evident that Boyle's conception of romantic author is based on Foucault's theorization of "What is an author?" (Rabinow, 1991) yet in the preface Boyle begins with the argument that postmodern theorists have neglected understanding the impact of the "information society" (p. xiv). It is evident that the spleen case example is a classic illustration of the powe/knowledge nexus. Even though in the preface, Boyle admits that the power/knowledge nexus offered by postmodernists provides a promising starting place for the analysis of the information age (p.
xvi), he does not acknowledge Foucault explicitly in the book (mentions only in the appendix (p. 202 & p. 230)). Foucault (Rabinow, 1991) rejected the post-structuralist and postmodernist labels later attributed to him, and preferred to classify his thought as a critical history of modernity, I do believe Foucault's notion of "what is an author?," is the correct tool to understand the problems of 'information society.' Shouldn't Boyle (1996) be less critical of postmodern theorists when he is using one extensively to understand the intricacies of the information society?
Questions:
1. Primarily my concern is how do we (as conscious scholars) define the public and private sphere in this information society then? The division between the public and private sphere is getting hazy, with the deemed property rights (as an incentive for research), yet that would lead to what should we would consider "private" (such as our own genetic make-up) that would not be commodified and then sold into the free market. Is this a vicious cycle? With the increasing domination of neo- liberalism, is there any way to break out of this vicious cycle?
2. Further, Boyle indicates that the notion of authorship allows justification for such things as corporations to take well-known folkloric remedies from "third world" peoples and, with slight alterations, claim the intellectual property right to them with no economic benefits to the peoples from which they came.
Check here to see the famous intellectual piracy case between several US companies and indigenous people in India. Would Boyle's examples of recommendation (p. 172) help overcome this problem?
References
Boyle, J. (1996). Shamans, software, & spleens: Law and the construction of the information
society. Cambridge, MA: Harvard University Press.
Rabinow, P. (1991). The Foucault reader. London: Penguin.
from? Boyle looks at the issues and complexities in the free market, and the public and private spheres and quoting Boyle his work "is an analysis of the social construction of reality" (p. x).
Boyle's (1996) central thesis is how the law concerning intellectual property rights is embedded in the notion of the "romantic author." Boyle uses case studies of intellectual property right law ranging from software, to blackmail, to insider trading, to spleens to illustrate how the idea of the romantic author comes into play in each of these discourses. Further, he signifies that this notion creates a complexity regarding where the division between expression and idea lies within the law. Boyle states that the idea of the romantic author has emerged through the debates over copyright in Germany in the late eighteenth
century. The copyright that emerged stated that an author had to be special in a specific kind of way. The romantic author was the transformation of genre, the revision of form. As Boyle specified,
"It is the originality of the author, the novelty which he or she adds to the raw materials provided by culture and the common pool which "justifies" the property right and at the same time offers a strategy for resolving the basic conceptual problem…what concept of property would allow the author to retain
some property rights in the work but not others?" (p. 54)
Boyle then indicates the problems of property rights where copyrights are awarded to those who fulfill the idea of romantic author in present law and in court. He suggests a reformation of current intellectual copyright laws as not only more concern for the public domain is required but also as copyrights are constructed around the idea of authorship, where only certain kinds of contributions are recognized (p. 168). In addition, he suggests implementing a property rights system, which is subject to periodic auditing to determine if the intellectual property right is providing too high or too low an incentive to future
production and research (p. 172).
Boyle has used several case studies to illustrate how the idea of romantic author plays out. I am particularly fascinated by the case of Moore vs. The Regents of the University of California where the court decided not to allow a man the rights to genetic material from his own, even though removed spleen. This example clearly illustrates how the power/knowledge nexus works through the idea of the romantic author that comes into play in the discourses. Boyle signifies that "The court thought that Moore did not exhibit that mixture of arcane labor and dazzling originality that we associate with the romantic author" (p. 106). Consequently, from the perspective of the romantic author Moore's claim not only possesses hindrance to research (which is signified to serve the greater cause- under dominant ideology) but also "attempts to
privatize public domain" (p. 107). The scientists who used his spleen did display the characteristics of originality, creativity, and labor and thus a perfect fit for the image of romantic author. Therefore, as Boyle concludes, it is the rhetoric of the romantic author, which provides justifications, in the eyes of the law, of intellectual property rights. My critique is that it is very much evident that Boyle's conception of romantic author is based on Foucault's theorization of "What is an author?" (Rabinow, 1991) yet in the preface Boyle begins with the argument that postmodern theorists have neglected understanding the impact of the "information society" (p. xiv). It is evident that the spleen case example is a classic illustration of the powe/knowledge nexus. Even though in the preface, Boyle admits that the power/knowledge nexus offered by postmodernists provides a promising starting place for the analysis of the information age (p.
xvi), he does not acknowledge Foucault explicitly in the book (mentions only in the appendix (p. 202 & p. 230)). Foucault (Rabinow, 1991) rejected the post-structuralist and postmodernist labels later attributed to him, and preferred to classify his thought as a critical history of modernity, I do believe Foucault's notion of "what is an author?," is the correct tool to understand the problems of 'information society.' Shouldn't Boyle (1996) be less critical of postmodern theorists when he is using one extensively to understand the intricacies of the information society?
Questions:
1. Primarily my concern is how do we (as conscious scholars) define the public and private sphere in this information society then? The division between the public and private sphere is getting hazy, with the deemed property rights (as an incentive for research), yet that would lead to what should we would consider "private" (such as our own genetic make-up) that would not be commodified and then sold into the free market. Is this a vicious cycle? With the increasing domination of neo- liberalism, is there any way to break out of this vicious cycle?
2. Further, Boyle indicates that the notion of authorship allows justification for such things as corporations to take well-known folkloric remedies from "third world" peoples and, with slight alterations, claim the intellectual property right to them with no economic benefits to the peoples from which they came.
Check here to see the famous intellectual piracy case between several US companies and indigenous people in India. Would Boyle's examples of recommendation (p. 172) help overcome this problem?
References
Boyle, J. (1996). Shamans, software, & spleens: Law and the construction of the information
society. Cambridge, MA: Harvard University Press.
Rabinow, P. (1991). The Foucault reader. London: Penguin.
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