"The Intangible Commons of the Mind"? The Problem of Dualism in Narratives of Information Enclosure.

Abstract

In this thesis, I argue that the nascent politics of Intellectual Property is poorly served through attempts to conceive IP rights as an “enclosure of the intangible commons of the mind” and highlight a number of problems with the enclosure/commons dialectic more generally. To this end, it tries to indicate some new possible directions for the politics of IP, based on the insights of pragmatist philosophy and Actor-Network Theory. Such insights, I argue, allow us to interrogate questions about IP along two axes that the enclosure/commons dialectic neglects. A move away from the “intangible commons” allows us to focus on the very material way in which many of the harms of IP rights play out, and on IP's contentious function as a regualtor of objects, bodies and technologies. Second, it allows for an interrogation of the epistemological question of whether knowledge is considered to have been created or discovered, a distinction which is of vital importance to the question of whether any give sort of knowledge will be protected by an IP right. In order to address these difficulties, I argue that, instead of seeing knowledge as a sort of substance, we should instead see it in terms of practice and relations. Ideas, I argue, are not things, but assemblages of materials.

This perspective is developed and illustrated through a number of case studies. I examine the history of copyright, showing that its emergence was not as a means of granting rights to ideas, but instead as a method of controlling the circulation of books. The notion of knowledge as a substance, I argue, was introduced only later, as a way of legitimating and naturalising this system. I offer a similar account of the information commons, an idea that developed from the tendency to frame issues of internet regulation in terms of applying the law to a particular place – cyberspace. Finally, I examine the controversy surrounding the Google Book Search project. I argue that the attempted settlement should be understood as a combination of two different systems of control. Again, the language of substance obscures this insight, presenting the settlement as a compromise over access to knowledge.

I conclude by arguing that this theoretical critique is also a political critique – that a politics of IP which gave up on the idea of knowledge of substance would necessarily have to focus more on the specific parties and practices that are threatened by IP rights.