Copyright's Cultural Turn
Chander, Anupam, Sunder, Madhavi, Texas Law Review
Copyright's Cultural Turn CONFIGURING THE NETWORKED SELF: LAW, CODE, AND THE PLAY OF EVERYDAY PRACTICE. By Julie E. Cohen. New Haven, Connecticut: Yale University Press, 2012. 352 pages. $55.00.
How ironic that the scholarship on the area of law most directly regulating the culture industries has long resisted learning from scholarship on culture! Rather than turning to cultural studies, anthropology, geography, literary theory, science and technology studies, and media studies, over the last few decades copyright scholars have relied largely on economics for methodology.
However, the hegemony of law and economics in copyright is yielding. The exhortation of some of this school to commodify creativity to render it market tradable is increasingly exposed as deficient both as a sufficient mechanism to improve people's lives and as a vision of what makes a life good in the first place. Most importantly, by failing to recognize the importance of creative works beyond their economic value, a policy dictated by economic analysis alone might fail to provide sufficient limits on the rights of copyright holders.
Julie Cohen's new book, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice, 1 marks a major effort to crafta jurisprudence of information law that goes beyond law and economics. Cohen, a celebrated scholar of intellectual property and privacy, brings her formidable talents to the fore in this book to ask scholars in both fields to pay more attention to culture. Cohen argues that the dominant approach to copyright and privacy fails to understand the role of information in people's actual lives. We have become too enamored with abstract claims of human behavior that turn out to be incomplete upon closer examination, she tells us. Mining a broad vein of contemporary theory ranging from science and technology studies to cultural studies, Cohen seeks to inform policy on intellectual property and privacy with an understanding of what she calls the networked self, the individual embedded in a complex structure of social and technological circumstances.2
Cohen's book is part of what we believe to be a "cultural turn" in intellectual property thinking. Her book is part of an emerging school of analysis, which brings interdisciplinary insights from fields other than economics to explore the deeper significance and role of cultural products. Beginning with Rosemary Coombe and Keith Aoki, legal scholars have sought to learn from the humanities and social sciences beyond economics to better understand why we create, how we create, who creates, and the effects of cultural production on social and economic well-being.3 Increasingly, scholars writing in this vein draw their normative vision from the work of Martha Nussbaum and Amartya Sen, who drew attention to the need to improve quality of life by enhancing the capabilities of each person.4 An intellectual property policy would thus be evaluated by a new metric, not simply increased products (in the form of patents, copyrighted works, or trademarked goods), or its contribution to the gross domestic product, but rather its role in enhancing human capabilities. Rejecting the stylized utilitarianism of law and economics,5 Cohen explicitly embraces the capabilities approach of Nussbaum and Sen.6
Cohen's book defies easy summary, and we do not seek to do so here. It covers a broad legal landscape from copyright and privacy to communications policy. She critiques liberal policies for what she sees as their inattention to the endogeneity of the individual self, that is, the dialectic process between culture and subjectivity, with each influencing the other.7 She argues for the importance of play as a "vital catalyst of creative practice, subject formation, and material and spatial practice."8 Cohen seems to define "play" as not rigid, rather than not work.9 One of her primary concerns is the inevitable creep toward total control (legal, cultural, and technological) of a digital information society. …