The Memory Bank

Intellectual Property

October 20, 2006 by Keith Hart

In this essay I address anthropologists’ concerns with intellectual property and relate them to the principal conflict in global capitalism today. The drive of corporations and governments to privatize the cultural commons has gained momentum only in the last two decades, a period when neo-liberal ideas and policies have dominated world economy. Most anthropologists intuitively oppose the interests driving this process (Benthall 1999), yet it has some affinity with the pursuit of cultural integrity by indigenous groups, heirs to the nationalism that spawned ethnography as our current method of choice. Once again, in the name of defending the victims of imperialism, anthropologists naturalize an enclosure movement that threatens to become a second feudalism. We need to be more self-conscious about how our ideas and practices are influenced by the interests shaping the current phase of capitalism. It will not do for anthropologists to claim innocence while reproducing the idea of intellectual property (IP) in whatever derivative form. If we wish to understand the wider implications of the key terms we use, there is no substitute for taking a more comprehensive approach to contemporary world history.

I begin with an ‘extended case study’ (Van Velsen 1963) based on one anthropology student’s exposure to the complex issues involved. Then I touch briefly on the burgeoning anthropological literature about IP and indigenous rights, referring mainly to the work of Marilyn Strathern. My aim here is to place an insular professional discourse within the ongoing history of the world; and so the longest section traces the rise of IP as the central issue for corporate capitalism today. Finally, I return to the academic intellectuals whose practices are compromised by these developments and to the dilemmas of anthropologists in particular.

IP storyⁱ

Fernando is a Latin American PhD student in a major British anthropology department. He has a long-standing interest in ethno-botany which stimulated his research into the history and use of plants. In particular, he has long been intrigued by the apparent conflict between an anthropology concerned with universal principles and systematic cross-cultural research — of the sort associated with Scott Atran (1990), for example — and the common anthropological assumption of discrete local cultures, with its echoes of nationalist demands for cultural integrity. At the same time, his motive in studying the suburbs of his country’s capital city could be said to have been “salvage ethnography”.

The area Fernando chose to work in had supported plantations until quite recently. Many of the poor people who lived there had once worked on the plantations and retained an active connection with what was left of the countryside, collecting plants that were useful for food, medicine and ritual purposes. He wanted to document traditional knowledge that he considered under threat, even though he was aware that the plants of the area were already extensively documented. The literature on local food crops, medicinal plants and economic botany went back to the late 16^th century. As a way of eliciting knowledge retention, he wanted to collect plants and to compare his field data about them with these other sources. He did not know then that much 19^th century research and writing also had as its rationale documentation of threatened traditional knowledge. This suggests that salvage ethnography may be addressing “disappearing worlds” with longer capacity for survival than their would-be protectors suppose. But it seemed to Fernando that rapid urbanization was shifting people’s attention away from plants and that there was a gap in ethno-botanical research on creole knowledge as opposed to the indigenous variety.

His research was financed by a central British funding agency which was concerned with ethical issues at the time, but never pressed him to acquire a government permit to collect plants and local knowledge. Fernando applied for a collection permit and planned to leave his country a copy of his plant collection. Such a permit was legally necessary for his samples to be identified and stored by the Pharmacy faculty of the main university, an internationally recognized herbarium of medicinal plants. In his case, the relevant taxonomist had already extensively documented the plants of this area, but he was interested in an ethnographic perspective on creole knowledge concerning their use. The bureaucrats Fernando approached for a collection permit laughed at the absurdity of supposing that poor slum-dwellers had any cultural knowledge worth preserving.

The reaction of the local people was not very different from that of the environment office. “You are wasting your time here. Why don’t you go to the forest where there are plants and plant specialists? We don’t know as much as our rural forebears about the subject. In addition, it is all in books and has been well-studied long ago. What you want to know is a matter for specialists.” Moreover, when he visited people to interview them about plants, they showed him books and guides to plants, recommending him to listen to specific programs on radio and television. In order to show Fernando that his research had already been done, one man brought out an illustrated guide to the eradication of common weeds sponsored by Monsanto. Many of the plants identified as being dangerous were actively used in the community for medicine and a few were eaten. He found the guide helpful for identification purposes, since it contained photos of each plant, as well as common and scientific names. People learned from these books as they learned from family and friends; but they did not consult them before preparing a remedy. In contrast to the anthropologist’s attempts to depict them as “traditional” (i.e. backward), they wanted to show him that they were well-connected to global society. Their knowledge was learned and not taken for granted as an informally shared tradition.

As part of his fieldwork, Fernando interviewed fifty individuals across a range of social statuses – age, gender, occupation etc.—and asked them what they knew about fifty local plants chosen for their significance in the popular economy. They had a lot to say, but in the process he was forced to modify radically his ideas about salvage ethnography. Much of the knowledge he documented had been introduced or produced only recently. His inventories testified to two-way plant exchange as much as to threatened knowledge. He discovered that the proportion of indigenous to introduced plants in his collection was about 2:3. Many of the indigenous plants, however, were widely spread around the world, some as plants naturally occurring all over the tropics, others as a result of the “Columbian exchange”. Introduced plants were both cultigens and weeds from the Old World. In any case, all the plants he documented were already in the public domain as part of colonial reports or inventories of economic botany and medicine dating back at least to the 19th century. Some are found today as ornamental plants in London’s public gardens or traded over the internet as medicinal panaceas.

The national government’s interest in indigenous cultural property and the prospect of making money from selling it to foreign corporations pre-dated Fernando’s research. Already the promise of a new El Dorado of biodiversity had resulted in the withdrawal of state funding from national research into medicinal plants and other genetic resources, in the expectation of earning millions of dollars in revenues through partnership with pharmaceutical corporations or at least cosmetics multi-nationals, without having to invest a penny of their own. Government officials began to take a different attitude to Fernando’s research when they realized that he was funded,
in their view, by the British government. Whereas before they dismissed the knowledge he was collecting as “backward” and already in the public domain, they now took it seriously, since “the British” were interested. “One minute I was considered a local loser, wasting my time recording old ladies’ remedies in a slum, next I was an agent of a foreign country involved in a clear case of potential bio-piracy.” The fact that he was funded by a British public body made him “a foreign researcher”.

At that time, the national government required foreign researchers in ethno-botany (PhD candidates included) to sign and buy access permits while agreeing to share with the government the profits made from selling products derived from any of the plants studied. The cost of such a permit was about US$30,000 (the equivalent of his research funding for two years). Strong conditions concerning intellectual property rights were imposed on any research that included basic inventory-making and the collection of a herbarium. In contrast with the clear mechanisms for government participation in any commercial venture arising from the research, only a few vague provisions were introduced for training local people and compensating local communities. Not many foreign researchers applied for permits and only a small number were granted, all of them for research on forest and indigenous peoples living “traditional” lifestyles.

One scandal hit the press during Fernando’s fieldwork, with the consequence of raising the nationalist profile of the IP issue. Some local academics, relying on information obtained from his official research permit, accused a Swiss PhD student, working among an indigenous people on medicinal plants, of planning to develop commercial products as his own IP without properly compensating the indigenous people or giving them a share of the potential profits. His research project was to compare reports on the Indians’ use of medicinal plants either side of the border with Brazil. While most research on this side emphasized the shamanistic and personal aspects of plants considered drugs or poisonous, research on the Brazilian side had yielded a large repertoire of medicinal plants. This latter inventory was now part of the public domain after having been published in an academic journal. The herbarium of the Pharmacy faculty was also accused of being an accomplice of this foreign agent, since it agreed to identify and retain a copy of his plant collection, thereby keeping the information in the country and in the public domain, as part of its own open access policy. The fact that the student was from Switzerland was the main evidence adduced for claiming that the pharmaceutical multi-nationals and their mega-bucks were behind his research. The student’s accusers did not acknowledge that he had been forced to accept the state’s conditions of profit-sharing, patenting and the rest in order to compare a basic inventory collection against one recently published in Brazil.

This climate of hysteria made Fernando’s research increasingly problematic, so that he returned to Britain to write up his fieldwork results with a measure of relief. But before long, his troubles took a new form, as he confronted the attitudes of other anthropologists to his work. When he gave papers on healers or community rituals to anthropology departments and workshops in Britain, all his audience wanted to talk about were the politics of indigenous cultural rights and his own role as a potential “bio-pirate”. The general ethical question of anthropologists’ role in purveying cultural knowledge from one part of the world to another seemed to take on special importance when the subject was the economic value of plants. In vain did Fernando argue that his research was no different from anyone else’s, that the problem was contemporary anthropology’s standard research paradigm, not his alone. In unconscious mimicry of nationalist discourse, his interrogators assumed that he was acting as a conduit for scarce indigenous resources to leak, without adequate compensation, into the bottomless pockets of the trans-national corporations.

It did not stop there. Some members of Fernando’s PhD committee objected to his arguments concerning the universal history of many plants, finding them nothing short of imperialist, a blatant cover for neo-liberalism. He was advised that it would be in his interest to reproduce the conventional anthropologists’ view that local plants are an integral part of indigenous cultures and therefore legitimately subject to exclusive property claims made by them. In mimicry of nationalism, the whole profession has built up its ethnographic method on the basis of an assumption about discrete local cultures; and this has taken on a missionary quality of late in the context of the battle for indigenous rights against the corporate forces of neo-liberalism. So the thesis itself became a site of struggle over intellectual politics.

IP in anthropology

Marilyn Strathern was onto IP before most of us, in the early 90s, just when it emerged as a WTO international treaty, TRIPs, in fact (see the next section). This focus grew out of her work on the new reproductive technologies (1992) and associated conflicts over persons and property; but IP also gave her a chance to develop her critique of “Euro-American” culture from the perspective of an ethnographer of the New Guinea Highlands (Strathern 1988). It fed into her growing interest in bureaucracy at home, especially in the universities (Strathern 2000). Property, Substance and Effect (1999) includes two chapters on IP: “Potential property: intellectual rights and property in persons” and “What is intellectual property after?” She was able to draw on the anthropological literature on IP and indigenous rights emerging at the time (e.g. Posey 1990, Brush 1993, Greaves 1994). There are few anthropologists more keenly attuned to discourses beyond the boundaries of our profession and to the contemporary world at large than Strathern, yet she declares her intention “to gather together certain issues of potential interest to social anthropologists”.

In the first essay, Strathern juxtaposes four contexts for contemporary ideas of ownership, an “assemblage” consisting of cultural identity, usable knowledge or intellectual property rights (IPR), the body (e.g. embryo conservation), and academic research (individual and collective inventions). These overlap, but they do not yet constitute a single field – that belongs to the future perhaps. They borrow from each other, but we cannot know in advance what the products of any synthesis will be. One intriguing question is which of the other three will provide analogies for the development of university departments. She points out that it is notoriously difficult to pin down cultures as social entities or to establish ownership over general knowledge. On IPR she would move beyond individual versus collective ownership to the rights of various sorts of collective and shows that the creativity of authors becomes subsumed under the investment of those who finance their work. Her famously original commentary on the evolving relationship between biotechnology and the reproduction of human life provides an analogy with computer software agreements. Finally, she takes on the insane bureaucracy of research assessment in the UK, where the products of named individuals depend at once on their universities, the dispersed communities of disciplines and other kinds of collective besides. She concludes:

Ownership re-embeds ideas and products in an organism (whether a corporation, a culture or an individual author). Ownership gathers things momentarily to a point by locating them in the owner, halting endless dissemination, effecting an identity. We might even say that emergent forms of property signify new possi
bilities for corporeality or bodily integration in lives that observers constantly tell themselves are dispersed. (Strathern 1999:177, original italics).

This is surely the nub of any anthropological concern with IP: What differences, if any, are there between corporations, cultures and individuals as categories of person, especially when it comes to the ownership of ideas? The second essay is addressed to a seminar on IPR in Papua New Guinea and draws on Actor Network Theory (Hassard and Law 1999) to frame the issue in its most general form. Starting out as a riposte to the division between technology and society in science studies, ANT collapsed the distinction between human and non-human entities, granting persons and things equal status as a sort of gesture to democracy (Latour 1993). Strathern recognizes an affinity here with cultural practice in the New Guinea Highlands, where persons and things are often treated as identical, but the radical distinctions are between persons. Division is achieved through relations (cf. Strathern 1995). So she sets out to highlight the dangers of importing the separation of technology and society along with IPR (“the hegemonic person/thing divide”) and to promote the export of indigenous cultural models in the international arena.

Strathern writes of the 1992 Biodiversity Convention:

On the surface, it would appear that ANT’s lessons about symmetry between the human and the non-human have already been learnt. Intellectual property rights protection promotes human knowledge on a par with other resources. (…) [Yet] IPR pursues its own differentiations between technology and society. (1999:184)

Note how, if only in literary convention, an obscure academic theory appears to influence major global developments and IPR is an actor in its own right. There is a confusion of subjects and objects at every level. The separation of personal and impersonal spheres of social life was a significant achievement of the bourgeois revolution (Hart 2005). It has been in some disarray for a century or more and ANT is just one discourse premised on its abolition. If anthropologists are to study effectively the consequences of contemporary IPR regimes for the indigenous peoples we study, our theories will have to go beyond academic abstraction for its own sake.

Marilyn Strathern is too interesting and complex a writer to be reduced to such a summary. In an afterword, she endorses Michael Brown’s argument, in “Can culture be copyrighted?” (1998), that the moral politics of cultural conservation should not be reduced to narrow disputes over the ownership of commodities. But she still sees possibilities in the rise of IPR:

If we shift into the world of already existing (a priori) inequities, then IPR is also a force to be harnessed. Precisely because it rolls so much up into a bundle, precisely because it has rhetorically inflationary potential, and precisely because it invokes property, it is a political slogan of (international) power. (1999:203)

Well, I suppose I agree. But, if we are going to get into this fight, it would pay to be aware of who we are up against, as well as of what intellectual resources we specifically bring to the struggle.

In the last decade, controversies over IP, indigenous cultural rights, biodiversity, reproduction and personhood have mushroomed, separately and together, as Strathern predicted. Brown’s Who owns native culture? (2003) and the lively anthropological debate it spawned (e.g. Alexander 2004) was one effective focal point for many of the issues that I evoked through Fernando’s story. This decade has also seen the digital revolution in communications, a radical cheapening of information transfers that has transformed the shape of the world economy (Hart 2000). If IP is about exercising control over ideas as commodities, the rise of commerce in digitized information that can be reproduced without cost has dramatically raised the stakes. The United States’ leading commodity exports are now digital music, movies and software and “piracy” is rampant in the former Soviet Union and China. So world governance itself is on the line.

A short history of IPⁱⁱ

It is a well-established convention of ‘global’ economic history to concentrate on the leading exemplar of capitalist development, once England, now the United States; and I will not attempt to break the mould in this short essay. Readers should be aware that capitalism is a much more diverse phenomenon than the following account allows. Nevertheless, I feel secure in claiming that the United States has taken the lead in shaping the current phase of corporate capitalism, just as England was the matrix of its original institutional form.

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.

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 (2004; Hartmann 2002: 69-73) saw three main threats to democracy — governing elites, organized religion and commercial monopolists (whom he referred to as a “pseudo-aristocracy”). So he was keen to include freedom from monopoly in the Bill of Rights. But, thanks mainly to his Federalist opponents, that clause slipped through the cracks of the constitution. From then on the consistent goal of corporations was 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.” 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 (2002) 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.

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 (Macpherson 1978). 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. Sadly, as we have seen, it has become commonplace for intellectuals to obscure the distinction between living persons and abstractions, as well as those between persons, 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 leading to the economic preponderance of information services whose reproduction and transmission is often costless or nearly so. A similar sleight of hand is at work here 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.ⁱⁱⁱ Yet corporate lobbyists depend 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 IP treaty that shores up the monopoly profits of transnational corporations.

Our world resembles the old regime of agrarian civilization (Hart 2006) and this is because unequal power has been concentrated in the hands of enforcers and rentiers. The term “information feudalism” (Drahos 2002) is highly appropriate for our era. 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 digital 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.

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. 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 and open source software movement (FOSS), 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 for most of the intellectuals whose rights are allegedly at stake, academic culture itself is undergoing a shift from communal sharing to private ownership of ideas.

In the name of protecting their IP, 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. This “culture war” ha
s 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 neo-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. “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. (Spooner 1855: available on the internet)

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 IP 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. The informal alternative to the claim that ideas can be owned as private property is the notion of a cultural or creative commons (Lessig 2004). Private and common property need to be opposed in principle as exclusive rights held against the world held by individual or collective entities versus free and equal access for everyone. This latter-day enclosure movement rests in part on confusion of ordinary individuals with the highly centralized corporations who drive it.

The rise of IP 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 and integrated circuit layers. The 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 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” joined the Berne Convention in the 1990s. 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 IP.

The United States tried out its new recipe for globalization of IP law when Ronald Reagan introduced the Caribbean Basin Economic Recovery Act in 1983. The act offered countries privileged access to the American market only if they observed the copyright of US owners. This initiative established the principle of linking trade rules to IP; and in the 1990s the USA entered bilateral treaties with many countries enforcing acceptance of the TRIPs terms on 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 has followed the American lead in seeking to police IP 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 — Brazil, India, China and South Africa — have so far resisted; and even they are not immune to trade pressure.

Many 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. The movie industry is at a more critical stage. Here the age of cheap reproduction has generated huge revenues for the main studios and the Moving Pictures Association (MPA) has been a leader of the drive to fight “piracy.” This campaign is not just legal, but also technical, with the machines being modified to prevent use across patented standards or regional borders. A century ago film-makers went west to Hollywood in an attempt to escape the restrictions of Edison’s East Coast monopoly. Pioneers like Walt Disney lifted 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.

The market for software is crucial to the struggle over IP. 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. The Free and Open Source Software movement (FOSS)^iv 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 through licensing agreements. FOSS&rsqu
o;s advantage over the monopolists is that they 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. IBM has now embraced Linux and is helping Lula’s Brazilian government to convert the public sector to open source software. This convergence of FOSS with elements of corporate capitalism poses ideological problems for many activists.

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 in the western media. But of equal significance are the thousands of decisions 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 (represented 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. Microsoft, on the other hand, emphasizes their track record of collaboration with government bureaucracy in regulating access to the internet.

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 IP rules “communists.” It’s an old story, the dynamism of small entrepreneurs versus monopolies protected by state power.

The fundamental weakness of the neo-liberal attempt to build a “free” world market on the principle 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 (1867) and Veblen (1904), who likewise argued for the inherently progressive nature of the machine revolution. But then society was becoming 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. Copyright was intended originally to protect the interests of individual authors and their interests are routinely invoked today to justify the extraction of rent by big corporations. We need to be able to separate the personal and impersonal dimensions of our associational life in order to combine them in new ways. It is just as damaging to collapse the difference between persons and things or ideas and life as it is to insist on a radical separation between them. The consequences for democracy are disastrous in both cases. We have to take the question of IP to the level of the individual agency. This in turn entails discussion of the fate of modern intellectuals’ normal habitat, the universities, in the age of corporate privatization.

Anthropology and the crisis of the intellectuals

It was the first decade of the nineteenth century in the small university town of Jena and the students were revolting.^v 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 (1795) 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. He claimed that if he himself were ever guilty of poisoning the minds of the young with pernicious rubbish, he too would deserve to die.

The prosecution called as an expert witness the university’s rector and Germany’s most famous philosopher, G.W.F. Hegel. He 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. Ideally citizens will eventually 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 agai
nst 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 (Hart 2000). The universities have been around 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.

Marilyn Strathern (2000) was right to pursue her interest IP into the heart of bureaucracy, as academic anthropologists experience it in their various countries. So too must we. Lindsay Waters (2004), 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. Publishing, he says, has become more concerned with quantity than quality and mechanization “has proved lethal”. He warns 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. (…) 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.

Waters’ jeremiad for the humanities is based on sound evidence, but he blames their decline on money and machines, so that his call for resistance has no practical basis in contemporary conditions. If we want to promote humanism, we should ask what makes our initiative possible now and why we in particular might succeed.

Anna Grimshaw and I (1993) 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 (1993). We held that intellectual practice should be integrated more closely with social life, given their increasing separation by academic bureaucracy. The need to escape from the ivory tower to join the people where they live was the inspiration for modern anthropology. But this had been negated by the expansion of the universities after 1945 and by the political pressures exerted on academics since the 1980s.

Edward Said (1994), in Representations of the Intellectual, without ever mentioning anthropology, 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 this kind, but James placed intellectuals within a historical process that had aligned them with power and made them increasingly at odds with the people. Said did not identify the political forces that had transformed intellectual life from being free individual creativity into serving the specialized needs of bureaucracy. The issue is whether those intellectuals who choose to reject bureaucratic conformity have significant social forces at their back or will 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. Their absorption as wage slaves and pensioners of bureaucracy not only removed intellectuals’ independence, but also 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 (1968) in his prescient BBC lectures, 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 anthropology’s 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 requires us first, to acknowledge how people everywhere are pushing back the boundaries of the old society and second, to be 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 IP is allowed to succeed.

The academic tradition has hitherto been one of open access to published information with full citation of sources, allowing readers to follow the scholar’s tracks. The FOSS movement is based on similar principles. Individual competition for the glory of discovery has been moderated 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 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 Waters rightly denigrates. Subjective contributions, like the qualities of a good teacher, inevitably carry much less weight.

And so the academic intellectuals who, following Strathern’s lead, might have offered a critique of the corporate takeover of the universities, find themselves instead drawn passively into a vicious variant of the privatization of ideas. In the process, much that was valuable in academic life has been lost. The institution of the university is already looking like an endangered species as a result. 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. In The Memory Bank (Hart 2000), 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 I soon realized 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, labor relations – 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” (Hart 2005)^vi — “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 sought to guarantee citizens equal (and therefore impersonal) rights in society. This meant being very clear about the difference between individual persons and impersonal entities. 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 sought to collapse the distinction between real and artificial persons in economic law. The impersonal society of the twentieth century flourished on this basis.

We have now grown familiar with the spectacle of strong states and 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” (Drahos 2002) 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. Such an enquiry should be explicitly historical. For indifference to history 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 to here from there, rather than remain trapped in the timeless generalizations of ideology.

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