When one views intellectual property as a regulatory policy aimed at furthering innovation and creative production, commentary packed with metaphors and symbolism can seem layers of abstraction removed from the real business, economic, policy and technological issues.

But what’s wrong with describing intellectual property and innovation in terms of metaphors and symbolism? An example comes from Duke law professor Jedediah Purdy as he proposes “freedom” and “democracy” as guiding leitmotivs for property reform, in: A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates. Chicago Law Review, Vol. 72, No. 4, 2005.

For instance, Professor Purdy addresses ripping and mixing digital content as “chang(ing) the structure of cultural production from one in which a few companies produce… to one in which many decentralized creators vie with each other for the attention of many disparate audiences.” 44. While admitting that ripping and mixing music does not produce “Enlightenment”, nor “deliberative democracy”, Professor Purdy justifies these activities because they result in “less hierarchical and centralized” production. 44. But what’s so important about being “less hierarchical and centralized?” Will there be more innovation, increased productivity, or wealth creation? These are questions free market thinkers would ask. However, to Professor Purdy, the abstract affiliation of hierarchy and centralization with "freedom” provides adequate justification.

Professor Purdy considers property at increasing levels of abstraction. He writes: “…Lessig’s special concern with the non-reciprocal, potentially dominating relationship between the owner of cultural material and the permission-seeker… The thrust of the idea is that one should not have to ask permission to use a part of one’s own culture.” 45. OK, I understand owning my car, and the fact that I would be angry if someone kept it me from. Or even my house, as I worked hard to put a roof over my head. But my culture? Will I lose my culture if I do not access it in the instance when it is copy-protected or closed-off? Are Professor Purdy and Lessig keeping me from “my language” or “my occupation” by not showing me unreleased transcripts of their forthcoming research?

Commenting on Professor Benkler’s work, Professor Purdy addresses the notion: “New technologies... may allow high levels of productivity alongside voluntary and decentralized production.” 45. To Professor Purdy, this reflects an “electoral democracy.” 46. Lets consider things here. Should technology companies develop software and networks to reflect values such as democracy? Should the technology industry be organized and shaped to resemble a democracy? Are companies that develop software with hierarchical and centralized R&D divisions undemocratic?

Professor Purdy continues: “The more legal rules open up experiments with peer production, the greater this democratic capability becomes; the more those rules foreclose experimentation, the more this democratic capability is diminished.” 47. Here, we see Professor Purdy extend “democratic” to yet another level of abstraction. But technology seems like a very tangible thing. Intellectual property, while not real property, can also be discussed in concrete language. Even if we call it “democratic” that technology be available for peer production, does being “democratic” make such production more useful or effective? Should technology policy imprint values such as “democracy” into technology or should policy facillitate technological innovation and productivity?

Without discarding heavy reliance on metaphors and symbolism, discourse in intellectual property and innovation will not touch on the true issues.

posted by Noel Le @ 3:23 PM | Free Culture Movement

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