'Towards a Critical IP Theory: Copyright, Consecration & Control' by John Tehranian in
Brigham Young University Law Review (2012) 1237-1296
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Intellectual-property jurisprudence increasingly informs the way in which social order is maintained in the twenty-first century. By regulating cultural production and patrolling the dissemination of knowledge, copyright law mediates the exercise of important social, political, and economic rights, thereby playing a critical role in the construction of our information society. In theory, ostensibly neutral ground rules guide the vesting, enforcement, and adjudication of rights pertaining to creative works in a way that best advances the constitutionally mandated purpose of the copyright regime: progress in the arts. But, in reality, copyright law’s procedural and substantive doctrines do more than just advance “progress in the arts” and can serve as powerful tools for the regulation, control, and manipulation of meaning. This Article identifies and builds on an emerging literature—one that it refers to as “critical intellectual- property” scholarship—to introduce a framework for studying just how copyright transcends its small corner of the legal universe by shaping social structures and regulating individual behavior as part of a larger hegemonic project.
As John Fiske writes, “Popular culture always is part of power relations; it always bears traces of constant struggle between domination and subordination, between power and various forms ofresistance to it or evasions of it . . . .” Thus, it is not surprising that intellectual-property laws that control access to and use of popular culture are a function of power relations. In the early 1970s, sociologist Pierre Bourdieu introduced the concept of cultural reproduction to explain the processes through which the dominant class retained its power. Drawing on the example of schooling in modern society, he argued that educational institutions function largely to preserve hegemonic interests by perpetuating the reproduction of the cultural and social values of the dominant class.
Bourdieu’s work on cultural reproduction has inspired waves of scholarship in the social sciences, but it has not generated as much interest in the field of intellectual property. Yet the notion of cultural reproduction is instrumental to understanding the consequences of intellectual-property laws on knowledge–power systems. Bourdieu’s work and the scholarship it has inspired suggest that the inviolate recitation of the cultural production of dominant social forces is a profound vehicle for the inculcation of a set of values and symbols that consolidate existing power structures. If that is the case, the act of imperfect reproduction, or of customization, of cultural production can translate into an act of subversion or reproduction of the existing social order in a particular form. These acts of differentiation and similitude, or the acts of imperfect reproduction and customization, are carefully regulated by intellectual-property laws. And the selective protection granted to cultural production under the guise of copyright reveals the role of intellectual-property law in molding identities, enforcing dominant values, and controlling expressive rights. In short, user and creator rights are determined byintellectual-property laws that can help both maintain and perpetuate existing social structures. Copyright’s procedural and substantive rules therefore serve as a key vehicle for the discursive exertion of knowledge–power systems on individuals.
Part II of this Article examines the link between intellectual- property rights and knowledge–power systems. Specifically, it frames the theoretical underpinnings of this study of copyright law in cultural studies. A growing body of scholarship has begun to analyze the relationship between trademark, copyright, and patent doctrines and wider power struggles by assessing the myriad ways in which our intellectual-property regime reflects and even accentuates traditional race-, gender-, orientation-, and class-based divides. Although this literature has not received a collective appellation, it has made a vital contribution to understanding the broader implications of intellectual-property law from a perspective informed, at least implicitly, by critical theory. This Article therefore identifies this nascent scholarship as developing a ‘critical intellectual-property’ theory. This Article then situates this critical intellectual-property scholarship in relation to the extant literature in the more mature movements of critical legal studies and critical race theory.
Building on this critical intellectual-property scholarship, this Article turns its attention towards constructing a theoretical model for assessing the broader impact of intellectual-property protections on hegemonic practices. It does so both to elucidate the relationships among present contributions in the field and to provide a framework for future work. Specifically, this Article recognizes three primary moments of analytical interest for critical intellectual- property queries: (1) the vesting of rights, (2) the assertion of rights, and (3) the adjudication of rights. Decision-making in these three theaters of operation reveals the intricate way in which ostensibly neutral laws have combined to create hierarchies of informational and cultural rights that patrol relations between sovereigns and their subjects, corporations and individuals, and entrenched interests and surging parvenus.
Thus, Part III focuses on the genesis of rights and the way in which the vesting of copyright protection beatifies certain forms ofcultural production. To illustrate this point and to provide a historical analysis of intellectual-property law as a hegemonic battleground, the Article examines the origins of the derivative-rights doctrine as a response to tensions over access to cultural content. Specifically, the example of William Shakespeare and the opera— surprisingly populist works in the nineteenth century that transformed into the fodder of only the elite in the twentieth century—helps trace the development of cultural hierarchy and chart the interplay between norms and the law in the process of sacralizing creative content. Part III concludes by examining the works of The Beatles, as embodied in both the musical Love and Danger Mouse’s The Grey Album, to demonstrate how modern copyright law patrols acts of cultural reproduction and semiotic disobedience.
Part IV turns its attention to the assertion of rights. Specifically, it examines the power dynamics at play in determining how and when rights are enforced and the resulting impact that selective enforcement has on the semiotic influence of cultural content. To illustrate this point, the Article considers the unauthorized use of sound recordings by the federal government at American detention facilities at Guantanamo Bay and the conspicuous silence about the practice by the music industry. Part IV contrasts this state of affairs to the aggressive, high-profile enforcement tactics that the music industry has used to fight the scourge of individual file sharing on the Internet. In the process, we witness how copyright, and its selective enforcement, can mediate the relationship between sovereigns and their subjects.
Finally, Part V focuses on how copyright interests are vindicated in the adjudicative process. Specifically, it charts how both the procedural and substantive aspects of copyright doctrine create hierarchies of protection and impact broader social, economic, and political rights. With respect to procedure, copyright’s seemingly innocuous registration rules create a vast disparity in the effective protections from infringement enjoyed by sophisticated versus non- sophisticated creators. Thus, procedural niceties reflect and perpetuate a broader societal project establishing cultural hierarchy and the consecration of sacred texts. With respect to substantive adjudication, Part V builds on a body of literature that has highlighted the impact that aesthetic judgments have in courts’ weighing of copyright claims. Specifically, aesthetic judgments reflect subtle, value-laden determinations about the place of creative content in our cultural hierarchy. To illustrate this point, an exegesis of two recent cases involving unauthorized send-ups of classic American novels—Gone with the Wind and The Catcher in the Rye— demonstrates how courts can abandon a rhetorical commitment to aesthetic neutrality in conducting their fair-use analyses and how implicit, but powerful, judgments about a work’s worth—in a sociopolitical context—can influence the outcomes of suits. To paraphrase George Orwell, while the law may tell us that all copyrighted works are created equal, it turns out that some are more equal than others.
