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The Cultural Life of Intellectual Properties
Authorship, Appropriation, and the Law
By Rosemary J. Coombe
Duke University Press Copyright © 1998 Duke University Press
All rights reserved.
Objects of Property and Subjects of Politics
... consciousness itself can arise and become a viable fact only in the material embodiment of signs ... understanding is a response to a sign with signs ... the individual consciousness is nurtured on signs; it derives its growth from them; it reflects their logic and laws.—V. N. Voloshinov, Marxism and the Philosophy of Language
... he treats her like a Barbie® doll—overheard
In a civilized nation, much of reality is an artifact. Too broad a set of intellectual property rights can give one set of persons control over how that reality is viewed, perceived, interpreted—control over what the world means.—Wendy Gordon, "Reality as Artifact: From Feist to Fair Use"
The storylines make the most universally beloved icon of the twentieth century sound like a rapacious rat. A refugee ... invites the chairman of the Walt Disney Co. to a Beverly Hills gallery to see his homage to the United States: a painting of Mickey Mouse handing a Campbell's soup can to a Russian. Disney lawyers, decrying copyright infringement, apply enough pressure to get the painting taken off display, and plans to make prints of it dropped ... During the past three years, Disney counsel estimates they have filed 1,700 copyright suits in U.S. courts. That doesn't count the majority of actions settled early ... [Caption beneath] an undercover Thai policeman destroying T-shirts ... "They're burning Bambi in Bangkok ... and Disney executives couldn't be happier."—Gail D. Cox, "Don't Mess With the Mouse: Disney's Legal Army Protects a Revered Image"
Who authorizes Thumper? I want to express the nature of my disbelief when reading a law review article, I noticed that Pierre Schlag cited authority when using the proverb "If you can't say anything nice, don't say anything at all." Perhaps he had his tongue in his cheek. Maybe the editors made him do it (student law review editors are notoriously tyrannical about citations to authority; one cannot say the sky is blue without finding a published source that verifies the fact). Either way, there are readers who no doubt feel that it is entirely appropriate to find authorization before you take the words out of Thumper's mouth. This, despite the fact that a lot of us cried when Bambi's mother died in that fire, that for some of us it's the closest thing we have to a shared cultural memory of childhood, and that we may well share a socialization in which our own mothers were grateful to be able to echo Thumper's words of wisdom. In other words, notwithstanding his role in a collective cultural heritage, Thumper must be authorized. Who authorizes Thumper? Those who own the intellectual property rights in him, of course, and Schlag appropriately cites Walt Disney Studios and the date of their copyright in Bambi as the relevant authority with which to credit Thumper's proverbial wisdom. It is the political dimension of this relationship between legal ownership and cultural authority that I address here, as I try to develop what Schlag, in the same article, both implies and denies: the possibility of a normative postmodern vision.
To make this argument, I shall first reiterate social and philosophical commentary made by legal scholars about the inadequacies of the dichotomous understanding of subjectivity and objectivity characteristic of mainstream liberal approaches to legal reasoning and the social life of the law. I attempt to move beyond critique, however, and consider relations among law, culture, and (the commodity) form. For subjects in contemporary consumer societies, I suggest, political action must involve a critical engagement with commodified cultural forms. In the current climate, intellectual property laws often operate to stifle dialogic practice in the public sphere, preventing us from using the most powerful, prevalent, and accessible cultural forms to express alternative visions of social worlds.
I should make it clear from the outset that this chapter speaks simultaneously from several dissonant cognitive frameworks; its polymorphous perversity is intentional, to the extent that authorial intentions are relevant to the rationalist within. As the following discussion will make apparent, I reject the rationalist privileging of the autonomous self and its claims to know an objective social world. Like the modernist, I seek to decenter the subject (in its guise as liberal individual) and its claims to ontological and epistemological primacy, but I reject the modernist insistence that there is a single underlying structure that may be privileged as the objective reality underlying the cultural epiphenomena of everyday life and consciousness. I am postmodernist in refusing to believe that we can find solace in any of the totalizing visions that modernism offers us, and in proposing that the social world is constituted only in and through representational relations of difference that are constantly shifting in our all-too-human efforts to give meaning to its terms.
In postmodernist fashion, I feel that form has implications for the issues that we address and that conventional forms of discourse limit and shape the realities we recognize. Like Schlag, I believe that "the typical supposition within the legal community that intellectual endeavour can and must converge in 'solutions' or 'conclusions' has a real tendency to kill thought," but I am not sufficiently rationalist to believe that it is possible to convey an "is" without imparting an "ought." Although other intellectual property scholars have argued that "normativity" is all that distinguishes academic legal scholarship, I do not find it necessary or even desirable to maintain the authority of such disciplinary distinction. I will leave it to others to monitor our academic trademarks. As suggested earlier, in the movement between normative evaluations and reflexive considerations prompted by an anthropological concern with signifying practice, the normative assumes new nuances. My argument will be made by way of anecdote, appropriation, and dialogue—a tactical pastiche often seen as characteristically postmodern, but, more importantly, a modus operandi that mimics the social practices with which I am concerned. I will also try to cease citing endless authorities in incessant notes, a convention of modern legal scholarship that assumes that an abundance of small typeface will enable us to "speak in the name of the real."
Objects and Subjects
... to understand ourselves as subjects constituted as speaking subjects is to understand ourselves as members of a dialogic community that is not a mere dead weight confronting the individual but rather is both the product and the medium of communicative relations. We transform speech even as we come to ourselves within it.—Drucilla Cornell, "Toward a Modern/Postmodern Reconstruction of Ethics"
A large group of legal scholars have developed and elaborated a critique of the dichotomous understanding of subjectivity and objectivity that characterizes liberal legal thought. Arguing that the objective world is the cultural construction of social subjects and that subjectivity itself is a product of language and cultural practice, this literature draws upon continental philosophy, North American pragmatism, cognitive theory, feminist theory, and cultural anthropology to support its claims. The idea of an objective world that can be known with certainty by a subject whose capacity for knowledge is independent of that world is repeatedly undermined. The world must be understood culturally in terms of the significance it is given by social groups who perceive, categorize, and act upon it according to socially conventional structures of meaning and language. Human beings may never speak in the name of the real, or grasp the world objectively, because the realities we recognize are shaped by the cultural contexts that enable our very cognizance of the world itself. Cultural categories provide the very possibilities for perception. What we experience as social reality is a constellation of cultural structures that we ourselves construct and transform in ongoing practice.
As Steven Winter once put it, legal objectivists treat the world as if it were "filled with determinate, mind-independent objects, with inherent characteristics unrelated to human interactions," understand categorization as inherent in the world or as a human subsumption of objects that have ascertainable properties that independently establish their commonality, and "treat reasoning as about propositions and principles that are capable of 'mirroring' those objects and accurately describing their properties and relations." Many legal scholars now argue that legal categories bear no accurate correspondence to a singular knowable reality, and that language, rather than mirroring or describing an objective state of things in the world, is constitutive of the world itself. Gary Minda, in an overview of "postmodern legal movements," suggests that second-generation critical legal studies scholarship is concerned to show how legal meaning about the world is created by interpreting subjects who are themselves constituted by particular social and cultural environments. These perspectives all emphasize the constitutive role of culture—socially maintained structures of meaning or relations among construable symbols or signs—in constructing the realities we recognize as well as our sense of self, community, and possibility. The imaginative making of meaning is the quintessential human act, and culture is both this practice and its products.
Postmodern legal scholarship—femcrits, critical race theorists, and poststructuralists—adopted social constructionist theses to expose the central ideological role that the autonomous legal subject plays in legal reasoning. These so-called postmodern developments in legal scholarship in fact draw upon understandings of human subjectivity that have deep roots in Western political philosophy and the social sciences. Anthropology, for example, has long distinguished the human subject from the individual of bourgeois liberal tradition. This liberal individual was a subject configured for the early modern bourgeois public sphere; the intentional author and the rational reader in this print-mediated public were both individuals, but the term individual has never embraced the full range of beings we now consider human. As Michel Foucault's work showed, "man" was constructed in a matrix of disciplinary surveillance practices that individuated humans in practices of social control that produced new regimes of power and knowledge as well as new forms of human self-consciousness. The priority given to the observing subject, the neutral observer who stands outside of the social world he or she observes, is also a product of such practices and the radical division of subject and object produced by modernity and Enlightenment sensibility. The individual, then, is a mode of being produced in discursive practices that are always simultaneously material and ideal (another crippling distinction inherited from modernity).
The idea of discursive production is crucial to any theory of the human subject; cultural construction is a practice in which the mediation of signifying practices forms both consciousness and the unconscious. Anthropologists, whose discipline was traditionally understood as "the study of man," have, ironically, always been in the vanguard of attempts to challenge the unity of this term and demonstrate the radically diverse ways in which personhood is culturally created and experienced. They contribute to a tradition of thought that recognizes that the individual subject always already finds itself in textualized realities, characterized by signifying systems as diverse as myths, kinship, religion, and commodities, although human language is often seen as the paradigm.
When the subject assumes language, forms belief systems, or develops an imaginary understanding of a "real" social position, enmeshings in realms of signification are realized. One of the central tasks of anthropology, conceived as a form of cultural critique, is to demonstrate the contingency of those things we find natural: to defamiliarize bourgeois culture in order to facilitate an enriched understanding of our human situation as social beings. Traditionally, anthropology accomplished this through the ethnographic rendering of others, but such an endeavor is just as necessary to understand contemporary Western social practices. A focus on cultural signification illuminates both how the subject is constructed in social formations and how human agency is accomplished. To understand contemporary subjects mandates an attention to cultural activities in which identities are forged and transformed, interpellated and resisted, maintained and challenged. It is with such practices that this volume will be concerned.
Drucilla Cornell is one of the more prolific legal philosophers who rejects the notion of a transcendental ego existing prior to its engagement in social and historical context, but she does not thereby view the subject as imprisoned by determining structures or as without capacities for agency. She sees the self as constituted through communicative activity, and consciousness as embedded in language and shared cultural symbols—the same social mediums in which they are realized. Neither self nor community is possible, then, without the social violence of language realized in writing:
Rousseau's originary myth of full speech assumes a linguistic system already in place in which the members come to language. Speech implies "writing" Against Rousseau ... Derrida argues that there is no innocent community initially free of writing ... by writing, Derrida means the system of representation that makes communication possible, not just what we mean by writing, a system of graphic signs ... To back his assertion that there is no community without writing, Derrida argues that the bestowal of the proper name, which no society can avoid, signifies writing in the sense that it implies a system of classification by which people recognize each other. The proper name carries within it the trace of institutional history. In other words, the identity of speech is contaminated by its other, writing.
The speaking subject cannot control the meanings of its speech, then, because the very iterability of signifiers—"the iterability that makes a system of signs a language"—always enables them to exceed the designs of their authors. "Language cannot be owned by the subject as her own expression" precisely because of the linguistic character of sociality itself. As we shall see, these understandings of language are routinely denied in laws of intellectual property, and it is the cultural and political consequences of such denials to which I will attend.
If systems of representation constitute both subjects and objects, the identities of subjects and objects are themselves continually disrupted by difference—for systems of signification are also systems of differentiation. The threat of such difference is never fully contained, not even as new identities or positivities are forged to incorporate those differences, for differences continually and contingently manifest themselves. For Cornell, such a decentering of the subject renders subjectivity fundamentally dialogic: "what is most characteristic of our humanity is that we are dialogical or conversational beings in whom language is a reality." The concept of dialogue might and should serve as a powerful regulative ideal with which to orient political life: "If the quintessence of what we are is to be dialogical—and this is not just the privilege of the few—then whatever the limitations of this ideal, it nevertheless can and should give practical orientation to our lives."
Historicizing the Subject
Legal theory tends to render its reconstitution of subjectivity and objectivity in utopian and optimistic gestures, as if legal tendencies to reify and dichotomize subjectivity and objectivity could be reversed with only a modicum of intellectual good faith and political good will. In the Dionysian social worlds they describe, dialogue is always already our state of being and consciousness. If judges and decision makers were simply to recognize this state of affairs as the human condition, better laws and better decisions would further realize this immanent potential. Such scholarship tends to project a purely theoretical subject, far removed from the social, political, and ethical realities in which human agents actually live and the material constraints they encounter. Legal theorists too frequently evade consideration of the social processes at work in everyday life to fix meaning and stifle dialogue. We need to examine the differential power that social agents have to make their meanings mean something, and the material factors that constrain signification and its circulation in contemporary societies. If, as human selves, in human communities, we are constituted by and constitute ourselves with shared cultural vehicles (as many of us are weary of having to assert), then it is important that legal theorists consider the nature of the cultural forms "we" "share" in consumer societies, and the recognition that the law affords them. If both objective social worlds and subjective desires, identities, and understandings are constructed with cultural resources, then legal attitudes toward these resources may have socially significant implications.
Excerpted from The Cultural Life of Intellectual Properties by Rosemary J. Coombe. Copyright © 1998 Duke University Press. Excerpted by permission of Duke University Press.
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