Information biopolitics: copyright law and the regulation of life in the network society

ABSTRACT

Online settings illustrate our truest passing into the information age, with cultural development and social relationships being mediated exclusively via ‘palpable’ digital information artefacts, like texts, images, videos, webpage links and social networking accounts. Suspended between its intangible nature and its various ‘tangible’ expressions, and according to Drahos constituting ‘the daily lifeblood of human agents as communicating beings’, information regulated under familiar legal conceptions of property suggests arguably ‘biopolitical’ developments: the hold, which one exerts on information items, extends to administering essentially life in its social and cultural aspects. The propertisation of information in copyright laws authorises long-term exercises of power that, in future, computer-mediated societies, could both undercut circulation of vital knowledge and structure the public’s participation in culture, thus interfering effectively with the development of personal, social and political identities. Such concerns appear more plausible considering the increase of corporate power across online settings, contested between concentrations of copyright-intensive industries and web hosting giants, and following debates over the impacts of laws like the recent EU Directive 2019/790. By reviewing copyright law developments, this paper reflects on Foucauldian biopolitics understandings and media ecology theoretical interpretations, to comment critically on the regulation of information and online public interaction spaces.

KEYWORDS:

• Biopolitcs
• copyright law
• media ecology

Acknowledgments

The author wishes to thank Georgios Papanicolaou for his valuable advice and observations.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Yet it also links with disability discourses, providing a plausible theoretical framework to explore relevant practical applications (for example, see Ng 2017).

2 For example, see preamble of the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage.

3 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994.

4 WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, both adopted in Geneva on December 20, 1996.

5 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (‘InfoSoc Directive’).

6 These were left, however, at the discretion of national legislators.

7 Spinello and Bottis (2009) engage in a detailed analysis of the relevant critical scholarship as it developed up to the late ‘00s.

8 See CDPA 1988 ss 29, 29A, 30, 31, 31A-44A.

9 See Article 5(2)(k) Directive 2001/29/EC, engaged with in C-201/13 Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others [2014] ECDR 21; also, UK CDPA 1988 s.30A.

10 For example, US DMCA 1998, Title II: Online Copyright Infringement Liability Limitation, Section 512; Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'), Article 14.

11 Directive 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Directive on Copyright in the Digital Single Market).

12 Governmentality is a key concept in Foucault’s work, discussing ‘not “government” as an institution […] but as the activity that consists in governing people’s conduct within the framework of, and using the instruments of, a state’ (2008, 318).

13 Foucault (1978) brings these ideas close to the concept of ‘normalisation’, discussed within his account of discipline. Normalisation talks of discipline through the imposition of refined social norms, such as medical norms towards attaining good health, instead of subjecting directly to legal norms.

14 Following Foucault’s notions of biopolitics, this includes anything from surveillance and security systems, to self-imposed personal scheduling assistants (calendars and timetables) and health monitoring apps installed on wearable technologies.

15 Hardt and Negri (2004, 108) explain that ‘affects refer equally to body and mind. In fact, affects, such as joy and sadness, reveal the present state of life in the entire organism, expressing a certain state of the body along with a certain mode of thinking.’ They continue by defining affective labour, as ‘labour that produces or manipulates affects such as a feeling of ease, well-being, satisfaction, excitement, or passion. One can recognize affective labour, for example, in the work of legal assistants, flight attendants, and fast food workers (service with a smile). One indication of the rising importance of affective labour, at least in the dominant countries, is the tendency for employers to highlight education, attitude, character, and "prosocial" behaviour as the primary skills employees need.’