of T-shirts, and the booms and busts of the celebrity industry. How- ever, the ... mative form of social constraints, skeptics see nothing more than a libertarian or ...
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THE CULTURAL LIFE OF INTELLECTUAL PROPERTIES: AUTHORSHIP, APPROPRIATION, AND THE LAW BY ROSEMARY COOMBE Duke University Press, 1998 Peter Krapp
Property law codiWes the claims of economic life: custody or control of things, freedom of industry and contract, claims to promised advantages, and claims to be insured against interference. Civilized society is expected to secure your control of your labor, your discovery, your acquisition. On the other hand, Roman jurists had already recognized that not everything is to be controlled by individuals, for it would run counter to the purpose of the commons such as air, light, water, public buildings. When legal philosophy after Hegel calls property a realization of the idea of liberty (making one’s will objective in the world involves an exercise of personality with respect to things), it formalizes how one may secure the relation of a physical person, or a will, to certain objects. In this sense, individual ownership might be said to grow out of group rights, or seen as an institution securing maximum interests (or satisfying minimal wants). But the cultural conditions of late capitalism demand quite a few steps beyond intellectual property as it was framed in the eighteenth century for the bourgeois sphere. Today, the unique publicity rights of celebrities founder because the basis of their notoriety is already a pop montage; the recognition of creativity demanded by law amounts to an appropriation that stretches our inherited notions of authorship. Conceptions of cultural identity are undermined by the fact that no system of authentication is ever free from disruption by alterity and difference, and the managerial revolution in intellectual property—the division of ownership and control—poses challenges in our “attention economy” that question the very roots of intellectual property law. Cultural Critique 58—Fall 2004—Copyright 2004 Regents of the University of Minnesota
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Rosemary Coombe’s volume on The Cultural Life of Intellectual Properties offers a fascinating romp through consumer culture. Her book’s declared political concern is that, under existing intellectual property doctrine, “criminal charges may be laid by state ofWcials whose sense of the public interest seems shaped primarily by proWtoriented actors” (4). Coombe calls for “a critical cultural studies of intellectual property” and invokes the anthropological roots of cultural studies as a means to criticize intellectual property doctrines that rely on a philosophical tradition. The majority of the pieces collected in this book appeared in various journals between 1991 and 1998 and unmistakably display the theoretical currents of that decade. Coombe refers to Foucault and de Certeau, Derrida and Gramsci, Êiêek and Jameson in her wide-ranging dissections of the legalese propping up the business of television and soda, the selling of T-shirts, and the booms and busts of the celebrity industry. However, the core of her work is an anthropological view of intellectual property issues. It is amusing when Coombe observes how “cultural studies dilute anthropology’s trademark” (16), but it also leads to a pivotal issue of her book. Her legal analysis draws on the ethnographic paradigm of cultural studies in support of her political criticism of the extant frameworks of intellectual property doctrine. Rousseau had already rebuked Hobbes for passing off as a general theory of humanity what was only a theory of the needs and interests of his contemporaries. Yet Coombe’s cultural anthropology seems untroubled by the fact that political theory, while certainly not ignoring ethnological research, must question any simpliWcation of highly differentiated conXicts of interests to a central perspective. Throughout the last century, political scientists have been charging that anthropologists and ethnologists insufWciently differentiate between power and authority and ignore the informal aspect of social pressure as the dominant means of social control. Coombe sidesteps this problem by focusing on cultural authorship in a wide sense, with reference to Foucault’s discourse and to the arbitrary character of some judicial decisions about intellectual property and social control (100). In calling for a critical review of the framework in legal scholarship on intellectual property, Coombe takes aboard twentieth-century cultural theories from Bakhtin and Benjamin to Baudrillard, from Habermas to Foucault, and on to the latest wave in cultural studies:
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the study of everyday life. What binds them together is the realization that “intellectual property issues press upon me in the commercial culture I share with my students, but eighteenth-century philosophical frameworks are deemed the appropriate academic vehicles with which to explore the dusty doctrines of copyright” (5). To analyze how intellectual property law is complicit with some infelicitous cultural conditions of late capitalism, Coombe posits “a critical cultural studies of law”—an ugly phrase perhaps, but a valiant attempt nonetheless to conceptualize the customs, precedents, and rules of our twenty-Wrst century cultural practices from a critical vantage point. Coombe’s intervention in cultural studies and legal scholarship offers an interesting alternative to critical legal studies, a leftist tradition in the philosophy of law, which had set out to counter two dominant models of legal thought: the law-and-economics school and the rights-and-principles school. The former uses the market concept (the invisible hand) to invoke conservative normative requirements, addressing mainly private law; the latter uses the concept of a moral majority to invoke liberal imperatives, addressing mainly public law. In confronting these two opponents, the dual aims of critical legal studies are a critique of legal formalism and objectivism, and a sustained interrogation of the purely instrumental use of legal doctrine and practice to advance political aims. The charges brought by critical legal studies are that the law encourages belief in the possibility of a method of justiWcation that contrasts fundamentally with open-ended disputes of basic terms of social life and instead proposes impersonal policies and principles. This attitude claims to be apolitical and to speak authoritatively within the institution, but in such perpetuation of the belief that the statutes and rules embody and sustain human association, moral order, and a normative form of social constraints, skeptics see nothing more than a libertarian or disillusioned interest-group view of politics. Even the tactical militancy of cultural critics like Antonio Negri and Michael Hardt, who take the legal construction of authority and social pressure as a starting point, falls short of realizing what Coombe manages to state quite clearly: the Xow of capital and imperial biopower can not only be traced in legal code; codiWcation remains open to interpretation, judicial and otherwise.
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The question that may decide readers’ sense of Coombe’s project will be how the critical impetus of her ethnographic approach lends itself to a continued application in the Welds of cultural theory and jurisprudence. If the future of intellectual property is tied up with the fate of the commons, her immense apparatus of legal sources in 140 pages of notes to this book provides something of a corrective to cafeteria-style self-helpings of cultural theory that make this book look rather heterogeneous, as Coombe herself acknowledges in her foreword. While she remains pessimistic about potential reforms of high-tech policy by high theory, any systematic analysis of knowledge work must address technology and its discursive powers. Her concern with feminism and gender politics offers important building blocks for an ethical reinterpretation of the technocratic administration of signs, beyond binary simpliWcations in the political process. In pointing to the growing importance of an inquiry into the current and coming debates over copyright and authorship, Coombe prizes complexity and subtlety over special interests and manages to establish the virtues of theorizing and the importance of its futures. In its call for a dialogic democracy that deftly accommodates articulations of alterity in the political sphere, this book combines a social theory never cheapened by identity politics with a much-needed rethinking of intellectual property for cultural critique.
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