The Society for Critical Exchange
Intellectual Property and the Construction of Authorship

Making and Unmaking Intellectual Property: Creative Production in Legal and Cultural Perspective

Making and Unmaking Intellectual Property
     Edited by Mario Biagioli, Peter Jaszi, and Martha Woodmansee
           Forthcoming, University of Chicago Press, 2009

Table of Contents


This volume brings together the diverse strands of research on intellectual property that have developed since the appearance of The Construction of Authorship. When that collection was published in 1994 intellectual property was largely a special interest of lawyers and legal scholars, but it has since become a focus of vital concern and of extraordinarily intense inquiry across diverse fields and disciplines. It has taken center stage in art, literature, music, technoscience, and cyberculture, and has become inextricably woven into global politics. Closer to home, intellectual property has become part of daily university life \x96 from debates over who owns academic work to more general discussions of open access and the role of the university at the intersection between public and private research. One mark of the change is that today's graduate students and faculty regularly attend IP workshops where university technology transfer officers teach them how to set up high tech ventures with the university and private investors.

The explosive interest in IP \x96 like the dramatic expansion of the range of objects eligible for IP protection -- is a dual result of technological innovation and increased commercial competition to exploit markets for intangible goods. This has brought about a much-hyped reconceptualization of cultural and technological production in terms of a \x93knowledge economy\x94 structured around IP. Our book traces many empirical facets of these techno-legal trends (from the patenting of living organisms to copyright protection for yoga techniques), but focuses primarily on the emergence of various and even conflicting perspectives on IP and the competing discourses of authority associated with them. If The Construction of Authorship interrogated the diverse ways in which the rhetoric of \x93authorship\x94 has functioned in law and literary studies , this new volume undertakes an even more ambitious task: to explore a broader set of core categories that now are sites of contestation in discussions around IP. These include not only the \x93author\x94 and the \x93inventor,\x94 but also \x93the public domain\x94 and the \x93commons\x94 as well as \x93property,\x94 \x93agency,\x94 \x93culture,\x94 and \x93representation.\x94

As IP law is being tweaked to expand and extend the scope of protection, more constituencies are developing stakes in IP as well as discourses about it. Twenty years ago intellectual property was the domain of legal practitioners and policy makers, but it is now competently studied and discussed not only by those who apply it but also by anthropologists, historians, science studies practitioners, political theorists, legal scholars, cultural critics, and art historians. It is even becoming, quite rapidly, the subject of critical art practices.

IP, in sum, is much more than a body of legal doctrine, and the discourses that are emerging about it are not reducible to reactive responses to the law. Artists may use IP to make art (not just to protect their work), while anthropologists may look at IP as a window on changing kinship practices or on definitions of \x93cultural heritage\x94 or what \x93owning culture\x94 means. Similarly, historians study IP not just as a branch of book history or history of technology and business, but also as a more general case of discourse formation about property and political economy. This proliferation of perspectives has the potential to inform and influence discussions of IP policy by suggesting the contingency of this set of legal institutions and the manipulability of the powerful tropes associated with them. This process of critical demystification is still in its early stages, however. Today, it is sometimes hard even for self-identified critics to escape the force field of conventional IP talk and thinking. Thus, for example, alternatives to traditional IP like free and open source software or creative commons are actually structured around unexamined premises of authorial sovereignty. Similarly, even as scholars voice their alarm about the mounting privatization of information \x96 about the expansion of IP protectionism in our culture and pharmaceutical industries \x96 they are at risk of accepting uncritically, or even helping to craft and implement, ever more draconian \x93plagiarism policies\x94 and ever more nuanced pedagogies to teach their students to individuate \x93mine\x94 and \x93thine\x94 in thought, word, and deed.

Accordingly, this book seeks to identify and interrogate a constellation of discourses and objects that, while related to legal definitions of IP, do not match them. We are very interested in these mismatches, as well as in the arrangements that emerge at the margins of IP law. Not only can these mismatches and emergent scenarios suggest directions for saner future articulations of IP law, but they also provide excellent material for both understanding and producing culture. In this book, in fact, \x93intellectual property\x94 is typically used under erasure. Many of the chapters show that the production of things, practices, and texts is not reducible or ascribable just to the \x93intellect\x94 (and certainly not to the intellect of one individual), and that \x93property\x94 rarely captures the relations between people and the things they produce, try to use, gain access to, or simply control.

We wish to stress that this book is not merely another general popular critique of IP doctrine. The chapters are rooted in the specifics of material and legal practice, they engage with the legal details, but they do so without privileging the viewpoint of the legal profession . We avoid both general critical pronouncements about IP and the normalizing discourse of policy around \x93balancing\x94 or "optimizing" IP doctrine. Howeve r valuable these may be, they fail to confront the root problems of the scenarios we are all facing. A bit in the tradition of the Annales School , we want to make IP \x93strange,\x94 and we do so by engaging it very closely. Our contributors look at the writing and reviewing of patent applications, the rules about patent drawings, the reasons for granting IP protection to asexually reproduced plants but not to their sexually reproducing cousins, the intense discussions among hackers as they craft licensing agreements, the technical definitions of academic plagiarism, the practices of both IP enforcers and \x93pirates.\x94 It is only through this kind of attention to cultural production in the shadow of IP that one can find and analyze the interesting slippages between practice and its legal conceptualization.

We also wish to stress the crossdisciplinary nature of our volume. The stunning growth of interest in, and proliferation of writing about IP has yet to be coupled with sustained conversation across fields and disciplines. Most historical and theoretical work to date has focused on copyright, leaving patent and trademark largely untouched. In part this is due to the traditional legal taxonomy we have inherited, which distinguishes sharply among these domains. Our volume challenges this taxonomy by examining the concepts that animate it. The volume also bridges the disabling divide between historical study and attention to contemporary IP questions and problems, and it addresses the relative failure of "policy" scholarship to engage with documentation of what actually occurs in communities of practice. If crossdisciplinarity is good for most academic discussions, we believe that it is a must in the case of IP, a topic that quite literally cuts across all disciplines and fields of cultural production .

This objective is reflected in the book's table of contents, which includes legal scholars, film theorists, anthropologists, indigenous rights advocates, literary scholars, science studies practitioners, historians, folklorists, economists, and art historians. The book grows out of a conference organized by the editors and sponsored by the Society for Critical Exchange in April 2006. A number of the essays we propose to include originated as conference presentations, and we have solicited additional essays to fill important gaps.

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