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Abstract
Efforts to make (and keep) knowledge public have provided a powerful counter-model to the recent expansion of exclusive intellectual property rights in such arenas as information technology, digital media, biological research, and pharmaceutical access. While sympathetic to the impulse to counteract the new ‘enclosures’ with knowledge made public, this essay critically interrogates some of the constitutive limits – in fact, the constitutive outsides – to these counter formulations. Paying particular attention to how public domain initiatives, like their strict intellectual property counterparts, also police the line between the proper and the improper copy, I argue that mechanisms for keeping knowledge public do not just circle the wagons against the predations of the Monsantos and Microsofts of the world. In their rhetorical and normative commitments to the proper copy, they also risk reproducing some of the same constrictions and exclusions that we tend to associate with (privatized) acts of enclosure itself. I explore this argument first in reference to creative commons and copyright, which can reproduce a strong ideological commitment to improvement – ‘innovation’ or ‘creativity’ – against the mere copy. What is the cost, I ask, of making the idea of improvement the price of admission not just to intellectual property claims, but to participation in newly ‘democratic’ public and common spaces of knowledge production? Second, I look to global pharmaceutical politics – specifically, regulatory efforts to improve access to cheaper copied and generic drugs in Argentina – to raise questions about the public domain's normative place in the continued expansion and harmonization of intellectual property regimes in the so-called global South. Together, these discussions suggest how the public domain and the commons, like their IP counterparts, can rhetorically and normatively expand and be secured against the improper copy.
ACKNOWLEDGEMENTS
Many thanks to Alberto Corsín-Jimenez, Tony Bennett, and two anonymous reviewers for their extremely perceptive and engaged comments; to Tim Choy, Amy Kapczynski, Michelle Murphy, Kavita Philip, and my colleagues in the working group Oxidate for their invaluable input; and to Ksenia Korobkova and Chris Hebdon for research assistance and intellectual provocation.
Notes
4. As I write, debates over the Google Books legal settlement hone in on precisely this point. An initiative that was touted as a way to make books and ‘knowledge’ public has begun to look, to many publishers, libraries, and legal scholars, just like a privatizing move, as Google may end up with exclusive rights to distribute a wide range of texts. The expansiveness of Google's effort to make books public has started to look like a monopolization.
6. Spurred on by Tushnet's excellent discussion, I find myself in the odd position here of finding reasons to think, against the post-structuralist, critical, and feminist theory to which I am drawn on this topic, that sometimes a copy can, indeed, just be a copy.
8. Global public health activists and developing nation policy makers obtained a concession from the WTO with the 2001 Doha Declaration, which allows for ‘compulsory licenses’ on still-patented drugs to be issued in the case of public health emergencies.
9. Consider the situation in Brazil prior to 1996,when its pharmaceutical patent law was enacted: ‘the unpatentable status of drugs … allowed licit copying of [antiretrovirals] ARVs’ (Cassier & Correa, Citation2007, p. 84). Here, then, we might also say, no patent, no piracy.
10. Kim Christen aptly notes, in the context of Aboriginal Australians’ ambivalent engagements with public domain and commons platforms, that ‘the public domain has always been an exclusionary proposition, a space to define who does not count’ (2005, p. 334).