The Denial of History: Reification, Intellectual Property Rights and the Lessons of the Past
May, Christopher, Capital & Class
We are often told that we have entered a new age and a new society: the 'information society'. Such claims have prompted a widened interest in and concern about intellectual property rights (IPRS). Indeed, intellectual property is the legal form through which many key resources of this 'new' society are commodified: through the recognition of IPRs, ideas, information and knowledge are made into property-like goods that can be exchanged in markets. Although intellectual property has a long history, recent interest and commentary has mostly been prompted by the inclusion, in 1995, of intellectual property in the remit of the World Trade Organization (WTO) in the form of the first global legal settlement for intellectual property: the 'trade-related aspects of intellectual property rights' (TRIPS) agreement (May, 2000; Sell, 2003). The previous international regime for the governance of IPRs, overseen by the World Intellectual Property Organization (WIPO), was strengthened and expanded by the TRIPs agreement, not least in that it made disputes over IPRs subject to the WTO'S dispute-settlement mechanism.
Considerable interest and concern has been expressed in policy-making, activist and academic circles regarding the role and effect of IPRs in the contemporary global system. However, this article takes a more general look at one central issue related to IPRs: reification. The purpose of this is to establish the status of IPRS as a political economic issue, not an arcane technical issue only for legal specialists. This article sets out the functions that IPRs perform and then briefly reviews reification as an analytical tool for the examination of social phenomena, before applying it to the institutionalisation of IPRS. This suggests that anxiety is a factor that needs to be accorded some analytical weight in any general discussion of the political problem of IPRs. Moreover, the reification of intellectual property contributes to the continuing discourse of depoliticisation and technocratic policy-making in this area. Therefore, reification must be resisted if a meaningful global politics of information and knowledge is to be established: it is only by understanding the reification behind the discourses that stress protection for IPRs that a principled political response to the effects of the commodification of information and knowledge can be constructed.
Although capital is, of course, segmented and fractional, encompassing varying 'models of capitalism', there remain some clear 'laws of capitalism' (Wood, 2003). Perhaps the most important aspect of these laws is the necessity of private property rights for capitalist social relations. As Samuel Oddi has noted, the widespread use of a natural rights discourse in the political debates over IPRs (most obviously at the WTO and the WIPO) tries to establish that 'these rights are so important that individual [WTO] member welfare should not stand in the way of their being protected as an entitlement of the creators. This invokes a counter-instrumentalist policy that members, regardless of their state of industrialisation, should sacrifice their national interests in favour of the posited higher order of international trade' (Oddi, 1996: 440).
This naturalisation has profound effects on the manner in which we conceive of the 'problem' of intellectual property. Indeed, the realm in which property itself is exchanged has also been naturalised. Markets just are, and any notion that they need to be set up seems to be largely absent from popular discourse; rather, they merely need to be unleashed. Thus the issues explored in this article are part of the more general problem of the rule of law, the construction of markets in capitalist social relations, and the role of reification in naturalising these contemporary structures of capitalism.
Reification obscures certain avenues of reform and trajectories of socio-economic development by naturalising the contemporary legal settlement that frames specific political economic issues. …