Intellectual Property

I

If a sole proprietorship or partnership owes more money than its assets
are worth, the original investors are personally responsible for the
debt. In 1580, Queen Elizabeth I of England granted “limited
freedom from liability” to The Golden Hind, a ship owned
by Sir Francis Drake in which she was the largest shareholder. This
meant that, if the enterprise incurred large debts, investors were
limited in their liability only to the amount of their initial
investment, leaving creditors to pick up the rest of the losses. In
fact, the returns on this low-risk investment were 5,000 percent and
the queen was well-pleased. Drake became a national hero, but the
rest of the world thought of him as a pirate. The business model they
invented underlies the modern corporation. At the time, world trade
was dominated by the Dutch; so Queen Elizabeth granted a charter in
1600 to the East India Company, a group of merchants and aristocrats
based on the City of London. Over the next two centuries this grew to
a considerable size without ever losing its close ties to national
government.

Elihu Yale was the company’s governor in Madras before endowing
the college that gratefully changed its name to his. Apart from its
well-known role in India, the East India Company financed James
Cook’s explorations of the Pacific and controlled international
trade with the American colonies. The price of expansion in
competition with the Dutch was high, however, and by the 1770s the
company was on the verge of bankruptcy. Dutch traders and American
smugglers (whom the company wanted to be prosecuted as “pirates”)
were by-passing the company’s monopoly to sell cheaper tea to
the small businesses supplying the lucrative American market. The Tea
Act of 1773 gave the East India Company the exclusive right to sell
tea to the American colonies, exempted it from taxes levied on
exports to America and granted a tax refund on 17 million pounds of
tea then stored unsold in England. This substantially increased the
company’s profitability (the King was a major stockholder) and
allowed it to undercut the prices charged by the many small
businesses retailing tea in America. The Boston tea party was fuelled
by resentment at being made the victims of corporate monopoly in this
way.

Thomas Jefferson saw three main threats to democracy — governing
elites, organized religion and commercial monopolists (whom he
referred to as “pseudo-aristocrats”). With the above
precedent in mind, it is hardly surprising that he was keen to
include freedom from monopoly in the Bill of Rights. But, mainly
thanks to his Federalist opponents, that particular clause slipped
through the cracks of the constitution. From then on it was a
consistent goal of corporations to win the constitutional rights of
individual citizens for their businesses. This aim was largely
thwarted, but it built up momentum in the aftermath of the Civil War,
when the railroads acquired wealth and power that they were anxious
to convert into legal privilege. The Fourteenth Amendment of 1868
sought to guarantee former slaves the equal protection of the laws,
by making illegal discriminatory provision of education, for example.
This provision was then used by the railroads to sue states and local
authorities for regulations enacted specifically to control them, on
the grounds that this created “different classes of persons.”
The issue of corporate personhood was widely debated in the
newspapers of the day. With their wealth and longevity, the
corporations could keep coming back to the courts until they won. And
eventually they did, through the Supreme Court judgment of 1886 in
the case of Santa Clara County vs. the Southern Pacific Railroad.

The railroad was being sued by the county for back taxes, but its
lawyers claimed that the company was a person entitled to human
rights under the Fourteenth Amendment. The written record of the
Supreme Court’s judgment says:
“The defendant corporations are persons within the intent of
the clause in section of the Fourteenth Amendment of the Constitution
of the United States, which forbids a State to deny to any person
within its jurisdiction the equal protection of the laws.”

Thom Hartmann, whose book Unequal Protection is a major source for
this section, believes that it was not Chief Justice Waite’s
intention to draw this conclusion, which was rather inserted into the
head notes for the case — these do not constitute legal precedent —
by J.C. Bancroft Davis, the Supreme Court’s reporter. Davis was
not a low-level hack: a Harvard-educated lawyer, he had been a judge,
Assistant Secretary of State and Minister to the German Empire (in
which capacity he met Karl Marx). He wrote a dozen books, was once
president of a railroad company and worked with railroad barons such
as Jay Cooke in the 1860s. Whatever its provenance, this judgment
opened the floodgates: in the following quarter-century, of over 300
Fourteenth Amendment cases considered by the Supreme Court, almost
all were brought by corporations claiming the rights of natural
persons, only nineteen involved African Americans.

Today, if a town in upper New York State wants to protect its small
shopkeepers by denying Walmart the right to open a superstore there,
it will risk facing an expensive lawsuit brought to defend the
corporation’s constitutional rights as a person. It may be
worth recalling William Jennings Bryan’s observation that
corporations and living people, artificial and real persons,

“…differ in the purpose for which they were created, in
the strength which they possess and in the restraints under which
they act. Man is the handiwork of God and was placed upon earth to
carry out a Divine purpose; the corporation is the handiwork of man
and created to carry out a money-making policy. There is
comparatively little difference in the strength of men; a corporation
may be one hundred, one thousand or even one million times stronger
than the average man. Man acts under the restraints of conscience,
and is influenced also by a belief in a future life. A corporation
has no soul and cares nothing about the hereafter…”

Today God’s purpose is routinely invoked to justify a US government
beholden to the corporations in a way that would surprise even the
East India Company’s shareholders whose excesses did so much to
provoke the war of independence.

We still think of private property as belonging to living persons and
oppose private and public spheres on that basis. But what makes
property private is holding exclusive rights against the world.
Abstract entities like governments and corporations, as well as
individuals, can thus hold private property. We are understandably
confused by this development, especially since the rise to public
power of the corporations rested substantially on collapsing the
difference between real and artificial persons in economic law. But
of course corporations have retained that limited liability for bad
debts and freedom from some other legal hindrances that you and I
still suffer from. This constitutes a major obstacle not only to the
practice of democracy, but also to thinking about it. We find it hard
enough as it is to see ourselves as equal and free agents in a
democracy where power is exercised remotely and anonymously. But if
we swallow the idea that General Motors deserves the same protection
of the laws as individual citizens, then we are lost. And the sad
truth is that many intellectuals have followed the same path in
obscuring the distinction between living persons and abstractions, as
well as those between people, things and ideas.

Private property has not only evolved from individual ownership to
predominately corporate forms, but its main point of reference has
also shifted from “real” to “intellectual” property, that is from material objects to ideas.
This is partly because of the digital revolution in communications which has led to
the economic preponderance of information services whose reproduction
and transmission is often costless or nearly so. We will consider
below how copyright, patents and trademarks came to assume such
significance in the transnational corporate economy. Here it is
enough to point out that a similar sleight of hand is at work as in
the claim to corporate personhood. If I steal your cow, its loss is
material, since only one of us can benefit from its milk. But if I
copy a CD or DVD, I am denying no-one access to it. Yet corporate
lobbyists depend precisely on this misleading analogy to influence
courts and legislators to treat duplication of their “property”
as “theft” or even “piracy.” It is ironic that the United States,
born in an act of resistance against corporate monopoly, should now
be foisting onto smaller countries an intellectual property treaty that
shores up the monopoly profits of transnational corporations on pain
of denying those countries access to the American market.

In many ways, our world resembles the old regime of agrarian
civilization and this is because unequal power has been concentrated
in the hands of enforcers and rentiers. The term “information
feudalism” is highly appropriate for our era. The world is now
witnessing the triumph of that “pseudo-aristocracy” of commercial
monopolists that Jefferson once saw as the main danger to
liberal democracy. It is as if the East India Company had never
suffered the reverse of American independence. We need to examine
closely the contradiction between coercive demands for tax and rent
and the formation of a world market where people in general might
enjoy the benefits of the machine revolution, if they were left free
to exchange goods and services as equals. Human work was once
conceived of as collective physical energy, as so many “hands”.
The internet has raised the significance of intangible commodities.
Now that production of things is being replaced to a significant
degree by information services, labor is increasingly understood as
individual creativity, as subjectivity. And it is this shift that has
been captured by big money in the claim that “intellectual
property” deserves closer regulation in the interest of its
owners than it gets at present.

II

The fight is on to save the commons of human society, culture and
ecology from the encroachments of corporate private property. This is
no longer principally a question of conserving the earth’s
natural resources, although it is definitely that too, nor of the
deterioration of public services left to the mercies of privatized
agencies. Increasingly we buy and sell ideas; and their reproduction
is made infinitely easier by digital technologies. So the larger
corporations have launched a campaign to assert their exclusive
ownership of what until recently might have been considered shared
culture to which all had free and equal access. People who never knew
they shared a common infrastructure of culture are now being forced
to acknowledge it by aggressive policies of corporate privatization.
Across the board, separate battles are being fought, without any real
sense of the common cause that they embody:

1.Music.
File-sharing of popular music, harbinger of peer-to-peer exchange
between individual computers, pits the feudal barons of the music
business against our common right to transmit songs as we wish.

2.The moving image.
The world of film, television and video is likewise a site of struggle
sharpened by fast-breaking technologies affecting their distribution and use.

3.Language, literature and law.
In many ways, our ability to draw freely on a common heritage is being
undermined by the aggressive assertion of copyright, .as in the reproduction
of case law or the claim of copyright in normal words by businesses.

4.The internet.
What began as a free communications network for a scientific minority
is now the contested domain of giant corporations, governments and an
army of hackers.

5.Software.
The free software and open source movement, setting Linux and the
said army of hackers against Microsoft’s monopoly, has opened up
fissures within corporate capitalism itself.

6.GMOs.
The shift to manufactured food varieties linked to proprietary chemicals
and seeds has introduced a similar struggle to agriculture in the
context of growing public concern about genetic modification.

7.Pharmaceuticals.
The big drugs companies try to ward off the threat posed to their
lucrative monopolies by cheap generics aimed at the Third World
populations who need them most.

8.<The universities.
As the home environment for the bulk of the intellectuals whose
rights are allegedly at stake, academic culture itself has undergone
a shift from communal sharing to private ownership of ideas.

In the name of protecting their intellectual property, corporate
capitalists seek to impose antiquated command and control methods on
world markets whose constitutive governments have been cowed into
passive compliance. And these policies are being promoted at the
international level by the same United States government whose armed
forces now seem free to run amok in the world. But others, notably
the European Union, are not far behind. The largest demonstrations
against the neo-liberal world order, from Seattle to Genoa, have been
mobilized to a significant degree by the need to oppose this
particular version of global private property. The events of
September 11th 2001 have temporarily diminished this
movement, especially in North America, just as they have added to the
powers of coercion at the disposal of governments everywhere. In this
sense, the global movement for greater democracy and less inequality
has suffered a reverse. But the “culture war” has truly
only just begun. If classical political economy’s slogan of
free trade was aimed at dislodging traditional feudalism, we have to
get our minds around the current situation in which “free
markets” and “liberal democracy” are the rhetorical
disguise of feudal monopolists.

The phrase “intellectual property” seems to have been
invented by Lysander Spooner. He was an old-fashioned liberal
philosopher of the sort that flourished in the mid-nineteenth century
– individualist, anarchist, abolitionist, a sort of American
Proudhon. He was also frequently broke. In 1855 he published his
longest work, The Law of Intellectual Property:
or an essay on the right of authors and inventors to a perpetual
property in their ideas.
Spooner wanted to guarantee a
living for individuals who work with their minds, claiming that
copyright and patent laws were inadequate and unconstitutional. They
were inadequate because they failed to protect an author’s or
inventor’s rights in common law and unconstitutional because
they deprived citizens of their property. “Knowledge is
property,” he wrote, and property is an inalienable and
self-evident natural right. Existing laws confiscate the thinker’s
production and without their consent give it to others. With their
property rights secured, men of intellect could then be sure of a
living for their work.

“It is poor economy on the part of the common people to attempt
by stealing… knowledge, instead of buying it, to defraud
intellect of its wages. If unpaid, men of thought will serve those
who will pay — oppressive governments, monopolists, armies, and
other established powers; intellectuals themselves will then become
agents of oppression.”

Thinkers who serve the status quo – legislators, judges,
lawyers, editors, teachers, doctors, soldiers — are richly rewarded,
but those who serve humanity are impoverished, or worse. If the
establishment frauds were replaced by a system of reward for genuine
originality, the intellect could “enlighten, enrich, and
liberate all mankind.”

If you haven’t heard of Lysander Spooner, it may be because he
wanted to restrict use of his words without permission or payment.
But it is more likely because the American civil war buried that
libertarian moment of individual creativity and launched a new phase
of corporate capitalism that has only now come to full maturity in
the neo-liberal world economy. Whatever the origins of intellectual
property in fifteenth century Venetian glass patents and eighteenth
century author’s copyright, a corporate drive is now on to
privatize access to culture across the board in what has been called
“the second enclosure of the commons” and its main
beneficiaries are American, European and Japanese monopolists of
information-based commodities. Here “culture” is taken to
be an informally shared alternative to the notion that ideas can be
owned as private property. It is linked to the notion of a cultural
or creative commons. I wish to oppose private and common property in
principle. In the first case an individual or collective entity holds
exclusive rights against the world, in the second everyone has free
and equal access to the resource. This latter-day enclosure movement
rests in part on confusion of ordinary individuals with the highly
centralize corporations whose interests drive it.

The rise of intellectual property to its current prominence as the
most contested issue generated by global capitalism belongs mainly to
the last two decades, but its origin lies in the late nineteenth
century, when the western powers sought to consolidate their control
of a world market carved up between their various empires. The Berne
Convention for the Protection of Literary and Artistic Works of 1886
first established recognition of copyright between sovereign nations.
Victor Hugo was its most vigorous proponent. Over a century later, in
1994, the World Trade Organization (WTO) introduced the Agreement on
Trade-Related Aspects of Intellectual Property Rights (known somewhat
ironically as TRIPs). This covers copyright, patents, trademarks,
trade secrets, industrial designs, geographical indicia (sic)
and integrated circuit layers. The last item reminds us that this
international agreement’s birth coincided with the internet
going public and the invention of the World Wide Web, the launch
proper of the digital revolution. The enactment of TRIPs as a
mandatory feature of global trade was and is still an unprecedented
attempt to make US-style intellectual property law mandatory for all
countries.

The relationship of the USA to the history of international copyright
is crucial. American publishers routinely ignored British copyright
from the beginning and the US was slow to sign international
agreements on the subject. It only joined the Berne Convention in
1989! The original signatories were Britain, France, Germany and
Spain and many developing countries became members as colonies. But
when the Southeast Asian “tiger” economies began their
drive for modern growth in the 1960s, they did not respect
international copyright, tacitly sanctioning the cheap reproduction
of American textbooks that their people could not afford otherwise.
With their educational expansion achieved, these “pirates,”
as they were labeled by the Americans, joined the Berne Convention in
the 1990s. But by then the issue had shifted from books to music,
movies and software; and the TRIPs treaty envisaged an altogether
more comprehensive set of rules for intellectual property.

The US tried out its new recipe for globalization of intellectual
property law when Ronald Reagan introduced the Caribbean Basin
Economic Recovery Act in 1983. At the time the Caribbean was a hotbed
of “piracy” of materials whose copyright was mainly owned
in the USA. The act offered countries privileged access to the
American market only if they observed the copyright of US owners.
Countries like the Dominican Republic and Jamaica found that they had
to introduce intellectual property laws in a hurry if they wanted to
avoid exclusion from preferential tariffs. This initiative
established the principle of linking trade rules to intellectual
property and in the 1990s the USA entered bilateral treaties with
many countries in which acceptance of the TRIPs terms was enforced by
the threat of exclusion from the American market altogether. Some
fifty countries also signed bilateral treaties exempting US citizens
from future prosecution for war crimes, thereby bringing together the
conditions for a new American empire after the millennium –
military force, mercantilism and intellectual property. The European
Union, without the same mix of unbridled imperialism, has followed
the American lead in seeking to police intellectual property
aggressively. And many of the smaller countries who vote on
international regulatory bodies seem content to go along with this
policy. Only the larger non-western countries, such as Brazil, India,
China and South Africa, have so far resisted; and even they are not
immune to trade pressure, as the recent Indian patents law,
restricting the production of cheap generic drugs to the benefit of
the western pharmaceutical monopolies, has shown.

The first sector of information goods to feel the full implications
of the digital revolution has been recorded music. Many people feel
that the corporations, led by the Recording Industry Association of
America (RIAA), have already lost the war against free peer-to-peer
exchange of music files. Record sales have slumped dramatically and
the attempt to haul a random assortment of offenders into the courts
of the USA, Britain and France is unlikely to stem the tide in the
long run. The movie industry is at a more critical stage. Here the
age of cheap reproduction has generated huge revenues to the main
studios from sales of video or DVD copies in addition to cinema seats
and the Moving Pictures Association (MPA) has been a leader of the
drive to fight “piracy,” which is out of control in the countries
of the former Soviet empire and Asia. This campaign is not
just legal, but technical, with the machines being modified to
prevent use across patented standards or borders and hackers
circumventing these restrictions as they arise. The contrast with a
century ago is instructive. Then film-makers went West to Hollywood
in an attempt to escape the restrictions of Edison’s East Coast
monopoly. Pioneers like Walt Disney exemplified the frontier
mentality of the industry at that time, lifting much of his first
Mickey Mouse cartoon from a Buster Keaton movie without attribution.
Now the Disney Corporation engages in litigation around the world to
protect its private ownership of images and slogans that would not
have been covered by copyright without recent legislation.

Because of its centrality to the digital revolution, the market for
software is crucial to the struggle over intellectual property.
Software consists of disembodied machines, recipes of pure
information that achieve their effects through a variety of material
forms (hardware). Since reproduction of these recipes is virtually
costless, their ownership as commodities poses an acute problem for
any corporate strategy of accumulation. Even so, the Microsoft
Corporation has built a position of market dominance for its Windows
system by licensing software whose source code is kept secret from
the public. A movement has arisen to challenge this commercial
monopoly, Free Libre and Open Source Software (FLOSS), which is itself
divided between those who oppose selling as such and those who accept
money payment as long as users have access to the source code and can
modify and reproduce it with acknowledgment. These initiatives accept
the need for legal protection though such instruments as the General
Public License (GPL) and the Creative Commons license introduced by
Stanford law professor, Lawrence Lessig, who for many now symbolizes
the movement to end commercial monopoly that started with hackers
like MIT’s Richard Stallman and the Finnish boy wonder, Linus
Torvalds.

FLOSS has one great advantage over the monopolists. It can pool the
talents of tens of thousands of software engineers, both amateur and
professional, whereas Microsoft can hire only a few workers and
relies on its customers to discover problems through trial and error.
Moreover, its licenses are less restrictive and this has made the
most widely used system of open source software, Linux, attractive to
some of the leading corporations in the computing industry. IBM has
now embraced Linux and is helping Lula’s Brazilian government
to convert the public sector to open source software. Microsoft’s
business methods are notoriously predatory, as in the browser war
with Netscape that led to some anti-trust wrist-slapping within the
USA. Despite the current market share of the USA, the diffusion of
the digital revolution around the world is faster than for any
previous communications technology. Already Hewlett-Packard, for
example, are targeting the four billion poorest inhabitants of the
world, which means setting up test sites in China, the Middle East
and Africa to find out how machinery and software have to be modified
for conditions there.

Perhaps the critical player in this fast-evolving scenario is India,
with its vast population and huge pool of cheap, computer-literate
English-speakers, not to mention a diaspora that is steadily
returning home from Silicon Valley. The relocation of global
information services to cities like Bangalore, Hyderabad and Mumbai
has already invoked the specter of massive middle-class job loss for
the western media. But of equal significance is the current process
whereby thousands of decisions are being made at every level of
government and society to install the software and machines that will
establish Indian standards for decades to come. The main competitors
are Microsoft and Linux (promoted by its own commercial corporations
such as Red Hat Linux). The latter promote their software by
stressing that it is cheaper, more robust and flexible than Windows.
Bill Gates, on the other hand, emphasizes Microsoft’s track
record of collaboration with government bureaucracy in regulating
access to the internet.

This is the nub of the intellectual property issue. As in the case of
the East India Company’s tea monopoly, a few huge corporations
rely on the laws and policing powers of venal governments to maintain
artificially high profits and rents. The US Congress has shown itself
to be willing to invent and extend intellectual property rights
designed to benefit these corporations in fields stretching from
entertainment to the chemical industry. A powerful system of legal
enforcement at home, when combined with world market share and
American insularity, has led some to assume that the USA can impose
its own solutions to the commercial challenge of the digital
revolution. This strategy has now gone global through international
treaties such as TRIPs and the saber-rattling we have come to expect
from the world’s sole remaining superpower. But, just as
Edison’s monopoly was once circumvented by Hollywood, the
contemporary shift of economic power to Asia exposes the cracks in
this American bid for empire.

American corporations and American activists have so far led the
opposition to the monopolists; and their liberal constitution still
exercises a powerful grip over American minds, even if some
corporations want to reinvent the East India Company and the
President thinks he is George II. Recently, Richard Stallman dug up
an internal memo from Bill Gates in 1991:

“If people had understood how patents would be granted when
most of today’s ideas were invented and had taken out patents,
the industry would be at a complete standstill today… A future
start-up with no patents of its own will be forced to pay whatever
price the giants choose to impose.”

Now Gates calls detractors of intellectual property rules
“communists.” It’s an old story, the dynamism of small
entrepreneurs versus monopolies protected by state power. Maybe
we need another liberal revolution against the fake freedoms of
George I’s “new world order.” But the political contours of such
a revolution are hard to imagine at present.

The fundamental weakness of the neo-liberal attempt to build a “free”
world market on the principles of command and control is that its
very means of self-propagation, the digital revolution, promotes a
broader conception of democracy than the alliance of governments and
corporations is likely to be able to contain. We have been here
before, of course, through writers such as Marx and Veblen, who
likewise argued for the inherently progressive nature of the machine
revolution. But then society was being centralized at all levels and
now, just possibly, it is not. Taking the argument to the level of
global political economy inevitably makes it hard to represent social
change on this scale in terms of the personal judgments reached by
ordinary human beings. Yet the struggle to shape the future of
digital production and exchange is substantially a moral one.
Businessmen, politicians and the lawyers who defend them are often
accused of immorality, lying and even of committing crimes. Public
bureaucracies are said to be indifferent to human interests. The
legions of activists who make up the movement for democracy from
below are likewise motivated by an ethical politics in which personal
responsibility will count for more than it does at present.

The history of private property contains both sides, personal agency
and its impersonal conditions, but the difference between them has
been elided. This has allowed the rhetoric and symbolism of the
liberal revolutions to be appropriated by powerful interests whose
aim is the opposite of democracy. And world society now resembles the
old regime as a result. The debate surrounding intellectual property
is a major example of this. Copyright was intended originally in the
eighteenth century to protect the interests of individual authors and
their interests are routinely invoked today to justify the extraction
of rent by a handful of corporations running the music, movie and
software businesses. We need to grasp how the liberal project turned
into its contemporary antithesis. I would like to use classical
liberalism to sustain a critique of what passes for neo-liberalism
today. At the very least this might drive a wedge between the
apologists for this new enclosure of the commons and the ideology
they routinely invoke to disguise their real purposes. There was some
value in the modern attempt to carve out a sphere of impersonal
social life; but the result has been to drive individuality, moral
purpose and even religion from the conduct of our common affairs. In
the face of creeping corporate totalitarianism, we need to be able to
separate the personal and impersonal dimensions of our associational
life in order to combine them in new ways. One way of doing that it
is to take the question of intellectual property to the level of the
individual human actors we know of as “intellectuals”,
even if it is a pejorative term in Anglophone societies. This in turn
entails discussion of the fate of their normal habitat, the
universities, in the age of corporate privatization.

III

It was the first decade of the nineteenth century in the small
university town of Jena and the students were revolting. Napoleon’s
proletarian armies had already smashed the antiquated political
structures of a fragmented Germany. One day a student took a pistol
along to his lectures and shot the professor dead. On being arrested,
he gave as his defense Kant’s categorical imperative. A decade
or two before, with the world opening up under the impetus of the
French revolution, British industry and the international movement to
abolish slavery, Immanuel Kant asked how the peoples of the world
might find a way of living together beyond the reach of territorial
states. He concluded that everyone wants to be good, even if what
passes for being good varies between cultures; and that universal
idea provided humanity with a framework for a conversation about
making a just society. This moral premise – the categorical
imperative to be ethical in ones dealings with others or, in its
Christian form, to do unto others as we would have them do unto us –
provided a basis for constructing society where the writ of
state-made laws no longer operated. Kant’s moral politics was
the apogee of the liberal Enlightenment, an attempt to found civil
society on the personal judgment of self-reliant individuals, and the
student in question used this to explain what he had done. The German
states were in disarray and each citizen of the world had to base his
actions on universal morality, not on the ineffective laws of corrupt
states. If he himself were ever guilty of poisoning the minds of the
young with pernicious rubbish, then he too would deserve to die. It
was his duty to do good by eradicating evil.

The prosecution called as an expert witness the university’s rector,
G.W.F. Hegel, the greatest German philosopher of his day. We
can imagine the local audience waiting to hear his testimony with
bated breath – would he try to appease the students or side
with the old regime? Hegel just said “No self-respecting
community can allow its members to go around killing whoever they
like. Kant’s moral politics were the last dying gasp of
bourgeois individualism, a failed attempt to make society on the
basis of contract-bearing persons. The philosopher’s task is to
help us understand the movement of societies in history and to devise
states that work better for their members. The proper object of
philosophy is society, not the individual; and it is the university’s
job to train a class of professional experts capable of running the
state in the interest of all. It is not enough to want to be good. We
must be held accountable for the social consequences of our actions
and murder is a crime against the community. Ideally citizens will
come to recognize the laws as being in their own interest and then
public life will be ethical.” We have to live in societies whose
principles have an impersonal validity. The question then becomes
how and why do those principles move in history? Like his contemporaries
David Ricardo and Auguste Comte, Hegel was inventing systematic
social science.

He put it all together in The Philosophy of Right
(1821) which both contains the intellectual agendas of the giants of
modern social theory — Marx, Weber and Durkheim — and provided the
blueprint for the social form that has dominated our world for a
century and a half. I call this form “national capitalism,” the attempt
to reap the economic benefits of capitalism and moderate its socially
harmful effects through central bureaucracy. There is a lot to be said
for the intellectual integrity of Hegel’s proposals, but they constitute
in effect a counter-revolution against the liberal revolution. The chief
consequence of this counter-revolution was the merger between states
and corporations that has culminated in the neo-liberal world economy
of our day. The universities have been around in some form for many
centuries, but they only came into their own in the second half of the
twentieth century, as the training grounds for bureaucracy that Hegel
envisaged. Most contemporary intellectuals have taken refuge in them
by now and human personality has been in retreat there for some time,
appearing only sporadically like a ghost at twilight.

In Enemies of Promise: publishing, perishing and the eclipse of
scholarship
, Lindsay Waters, humanities editor for Harvard
University Press, claims that the current explosion of academic
publishing is a bubble as certain to burst as the dot com boom. His
essay is a warning to academics, in the face of the corporate
takeover of the university,

“….to preserve and protect the independence of their activities,
before the market becomes our prison and the value of the
book becomes undermined…. We scholars and publishers have
allowed the moneychangers into the temple. We need to restrict their
activities, because we cannot kick them out the way Jesus did (since)
many universities are, in significant part, financial holding
operations…. The commercialization of higher education has
caused innovation in the humanities to come to a standstill.”

Publishing, he says, has become more concerned with quantity than
quality and “the drive to mechanize the university has proved lethal
over the last three decades.” To save the book from the onslaught of
money and machines, “we must get back to square one – by asking
why anyone would want to speak, write or publish in the first place.”

Waters’ jeremiad for the humanities is based on sound evidence, but his
analysis of the reasons for their decline puts the blame on money and
machines, so that his call for resistance to university administrations
has no practical basis in contemporary social and technical conditions.
Getting “back to square one” is not usually a viable option for most of us.
If we want to promote humanism, we should ask what historical conditions
make our initiative possible and why we in particular might succeed.
“Socialism” is passé these days because social democracy threw out
money and markets when it rejected liberal democracy. Maybe we should
concentrate on the goal of democracy without worrying about whether
it is liberal or social.

In 1993 Anna Grimshaw and I published a pamphlet, Anthropology and
the Crisis of the Intellectuals
. We tried to locate
anthropology’s compromised relationship to academic bureaucracy
in the crisis facing modern intellectuals, as identified by C.L.R.
James in American Civilization. We held that intellectual
practice should be integrated more closely with social life, given
their increasing separation by academic bureaucracy. This escape from
the ivory tower to join the people where they live was the
inspiration for modern anthropology. But it had been negated by the
expansion of the universities after 1945 and by the political
pressures exerted on British academics in particular since the 1980s.

In The Intellectual as Exile, his BBC Reith lectures of 1992,
without ever mentioning anthropology, Edward Said made claims
for intellectuals that could be taken as a metaphor for the
discipline. He emphasized the creative possibilities in migration and
marginality, of being an awkward outsider who crosses boundaries,
questions certainties, a figure at once involved and detached.
Narrow professionalism poses an immense threat to academic life.
Specialization, concern with disciplinary boundaries and expert
knowledge lead to a suspension of critical enquiry and ultimately a
drift towards legitimating power. The exile and the amateur
might combine to inject new radicalism into a jaded professionalism.
Said credited James with being an intellectual of the kind he
advocated, but James placed intellectuals within the contradictions
of modern society, in a historical process that had aligned them with
power and made them increasingly at odds with the people. Said
generalized from his own personal trajectory, but his blind spot was
politics. He failed to identify the political forces that had
transformed intellectual life from being free individual creativity
into serving the specialized needs of bureaucracy. The issue, now
that the Cold War had recently ended, was whether those intellectuals
who chose to reject bureaucratic conformity would have significant
social forces at their back or would be condemned to fruitless
isolation.

For James there was a growing conflict between the concentration of
power at the top of society and the aspirations of people everywhere
for democracy to be extended into all areas of their lives. This
conflict was most advanced in America. The struggle was for
civilization or barbarism, for individual freedom within new and
expanded conceptions of social life (democracy) or a
fragmented and repressed subjectivity stifled by coercive
bureaucracies (totalitarianism). The intellectuals were caught
between the expansion of bureaucracy and the growing power and
presence of people as a force in world society. Unable to recognize
that people’s lives mattered more than their own ideas, they
oscillated between an introspective individualism (psychoanalysis)
and service to the ruling powers, whether of the right (fascism) or
left (Stalinism). As a result, the traditional role of the
intellectual as an independent witness and critic standing
unequivocally for truth had been seriously compromised. The
absorption of the bulk of intellectuals as wage slaves and pensioners
of bureaucracy not only removed their independence but separated
their specialized activities from social life.

One anthropologist who addressed these questions of intellectuals and
the public, of ideas and life, knowledge and power, was Edmund
Leach in his prescient BBC Reith lectures of 1967, A Runaway
World?
There he identified a world in movement, marked by the
interconnectedness of people and things. This provoked the
mood of optimism and fear that characterized the sixties, when
established structures seemed to be breaking down. The reality of
change could not be understood through conventional cultural
categories predicated on stable order.  Moral categories based
on habits of separation and division could only make the world’s
movement seem alien and frightening. An ethos of scientific
detachment reinforced by binary ideas (right/wrong) lay at the core
of society’s malaise. Leach called for an intellectual practice
based on movement and engagement, connection and dialectic. In short
he was calling for the reinsertion of ideas into life.

The solution to our problems cannot be found in increased
specialization, in the discovery of new areas of social life to
colonize with the aid of old professional paradigms or in a return to
literary scholarship disguised as a new dialogical form. It requires
new patterns of social engagement extending beyond the universities
to the widest reaches of world society. This in turn depends on
placing ourselves in a position first of acknowledging how people
everywhere are pushing back the boundaries of the old society and
second of being open to universality, most versions of which have
been driven underground by national capitalism and would be buried
forever if the present corporate privatization of the cultural
commons as intellectual property is allowed to succeed.

The academic tradition has been one of open access to published
information with full citation of sources, allowing readers to follow
the scholar’s tracks for their own purposes. The FLOSS movement
is based on similar principles. Individual competition for the glory
of discovery has usually been moderated in academia by a culture of
informal sharing that takes in teacher-student interaction, seminars,
conferences and collegial relations. The recent expansion of academic
bureaucracy has accentuated the objectification of thought as a
marker of status and reward. Ideas have become commodities to be
possessed individually, traded and stolen. The current panic over
plagiarism, especially by students, is one result of the
contradiction between exclusive private property and a human
conversation now reproduced digitally. An intensified focus on the
formal abstraction of performance has led to the academic labor
market being driven by the empty measures of print production that
Lindsay Waters rightly denigrates. Subjective contributions, such as
the qualities that mark a good teacher, inevitably carry much less
weight.

And so the academic intellectuals, who might have offered a critique
of the corporate takeover of the universities, find themselves
instead drawn into a vicious variant of the privatization of ideas.
In the process, much that was valuable in academic life has been
lost. The university is already looking like an endangered species of
institution as a result. Perhaps it was too closely yoked to that
alliance between governments and corporations that drove national
capitalism in its heyday. Universities may survive the social forces
transforming the contemporary world in name and material form, but
the content of what goes on within them will soon be unrecognizable
as that medieval guild tradition that the twentieth century made its
own.

I endorse Lindsay Waters’ call for a humanist revival. Something
must be done to reinstate human personality in our common
understanding of how the world works. But this should be through the
medium of money, markets and machines, not despite them. Friedrich
Engels once wrote a polemic against the likes of William Morris
called Socialism, Utopian and Scientific. Socialists were
“utopian” when their slogan was “stop the world, I
want to get off,” when they dreamed of escaping from industrial
capitalism into an earlier, simpler age. They were “scientific”
when, like the Marxists, they aspired to understand contemporary
economic history and take it in a more democratic direction. Then, as
now, society was becoming coordinated more rapidly and effectively at
the top than the bottom. In Money in an Unequal World, my
first idea was that the cheapening of information transfers as a
result of the digital revolution might allow the impersonal economy
of the twentieth century to be “repersonalized,” by
attaching more information to individual transactions and potentially
granting individuals greater control over work, consumption and
credit. But it did not take me long to realize that a fully personal
economy would return us all to the world of gangsters, both medieval
and modern. We need new impersonal norms capable of standardizing
social interactions where the nation-state can no longer reach –
law, money, education, technology – the list is endless. So our
task is not to replace impersonal society with personal life, but to
discover new ways of combining them.

The Hit Man’s Dilemma (“Don’t take this personal, it’s just
business”) is to be human or inhuman. It is a dilemma shared by kings,
generals, presidents and CEOs, when they contemplate the human cost
of an action undertaken on behalf of some collective interest. It
probably won’t go away. But our ability to devise ways of curbing the
high-handed behavior of the powerful has been deeply undermined by
a legal culture that grants business corporations the rights of living
persons. The liberal revolutions against the old regime — especially,
in view of later developments, the American war of independence –
sought to guarantee citizens equal (and therefore impersonal) rights in
society. This meant being very clear about the difference between
individual persons and impersonal institutions. Such a separation was
intrinsic to the rise of modern capitalism. But capitalism took a
bureaucratic turn in the late nineteenth century and this was the
time that business corporations, beginning in the USA, sought to
collapse the distinction between real and artificial persons in
economic law. The impersonal society of the twentieth century
flourished on this basis and, for many people, the idea that they
might exercise personal responsibility in the economic or political
spheres became simply inconceivable. Some intellectuals jumped onto
the obvious corruption of liberal ideals to advocate a variety of
anti-liberal ideologies, drawing on the same confusion of people,
ideas and things that had become normal in law and even in ordinary
language.

At the beginning of this century, we have grown familiar with the
spectacle of strong states and sometimes even stronger transnational
corporations riding roughshod over human rights and international law
in the name of the “free market,” especially for digital
commodities. The struggle to reverse this “information
feudalism” must take place at many different levels. One of
them should be to re-examine the metaphysics of where personal agency
meets the impersonal conditions of its expression. We might begin by
making such an enquiry explicitly historical. For the confusion of
our times is fed by an indifference to history that allows the heirs
of America’s anti-colonial revolution to reinvent the corporate
monopolies of absolutist monarchy in the name of liberal democracy.
If the Europeans can’t see through this, perhaps the Chinese,
Indians or Brazilians will. We cannot return to the eighteenth
century, but we can learn how we got from there to here, rather than
remain trapped in the timeless generalizations of ideology.

One Comment

  1. Most countries in the third world never respects intellectual property rights. piracy is so rampant in asian countries.,.;

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