Towards an affirmative public domain

Two competing and yet complementary philosophical concepts form the foundation for the legal protection of intellectual property – ‘competing’ in that created works protected by copyright are unavailable for unrestricted use by others as a result of the economic monopoly given to the works’ owners, and ‘complementary’ in that the presumption is that works no longer protected by copyright serve as the basis for the creation of new copyrightable works. These unprotected works comprise the ‘public domain,’ which has never been affirmatively defined. In Golan v. Holder (2012), the US Supreme Court concluded that such a realm is constitutionally unimportant. This research contends, however, that the Court's decision is incorrect, that Golan, federal legislation, and international treaties threaten to bring larger and larger portions of cultural and intellectual content under the control of a property regime that does not understand the contradiction inherent in the notion of absolute property rights in intangible goods. The result is that the public domain is under tremendous pressure from those entities which have the most to gain from expanded authorial rights and from a weakened and less inclusive public domain. Citizens thus will have fewer rights to access and freely use their culture as they choose. The eventual significance of this evolution will be that further creativity and innovation will be stifled, the opposite of the intention of intellectual property law. In this article, we develop an affirmative definition of the public domain, which we believe will correct the imbalance in current intellectual property law.     

Intellectual Property,Scientific Independence,and the Efficacy and Environmental Impacts of Genetically Engineered Crops

Neoliberalism is the political ideology behind efforts to commercialize university science. The development of genetically engineered (GE) crops has facilitated the commercialization process because GE crops generally have more restrictive intellectual property protections than conventional crops. Those restrictions have led some to question whether long‐term university research and innovations are being compromised to protect short‐term intellectual property interests. This concern is evident in two letters submitted by public‐sector entomologists in February 2009 to the U.S. Environmental Protection Agency (EPA). The letters asserted that scientists are prohibited from conducting fully independent research on the efficacy and environmental impact of GE crops. In response to the letter, the American Seed Trade Association (ASTA) negotiated an agreement between university scientists and seed companies to protect industry property rights while enabling university scientists to conduct research with more independence. Through a survey of public‐ and private‐sector entomologists who are members of two regional entomologist research groups, we document scientists' perspectives on the adequacy of the ASTA agreement and whether those scientists have experienced limitations on their research projects involving efficacy and environmental impacts. Our findings show that limitations exist and that certain forms of public knowledge about crops are likely being compromised. These findings have implications for the legitimacy of current risk management institutions, as well as for future technological breakthroughs and innovations.     

AGING OUT OF WOMEN INFANTS AND CHILDREN: AN INVESTIGATION OF THE COMPENSATION EFFECT OF PRIVATE NUTRITION ASSISTANCE PROGRAMS

This paper is the first to address the causal relationship between an abrupt change in the availability of public nutrition assistance and low-income households' private nutrition assistance utilization. In particular, we examined the way in which loss of Women Infants and Children (WIC) benefits impacted a household's utilization of private food assistance. Using a regression discontinuity analysis framework, we found that households significantly increased utilization of private nutrition assistance following an abrupt loss in public nutrition assistance. Estimates indicated that some households might have been able to compensate from about half to more than 90% of their loss in public WIC nutrition assistance. (JEL I38, C36, D12)     

INFORMATION WANTS TO BE FREE (BUT IS EVERYWHERE IN CHAINS)

Each new stage of private property creates a new axis of class conflict. If there are two axes of class conflict, two kinds of ruling class, two kinds of labor, why not a third? The new ruling class I call the vectoralist class. As private property advances from land to capital to information, property itself becomes more abstract. The property question, the basis of class, becomes the question asked everywhere, of everything. The hacker class arises out of the transformation of information into property, in the form of intellectual property, including patents, trademarks, copyright, publicity rights, and the moral right of authors. There is an essential difference between the hacker class and the vectoralist class. The vectoralist class produces nothing new. The hacker class includes anyone who creates new information, in any media.     

Copyright,digital sharing,and the liberal order: sociolegal constructions of intellectual property in the era of mass digitization

Intellectual property (IP) rights policy has long been driven by rights-holder interests, leading to IP regimes focused on protecting private property at the expense of broadening public access to cultural works. The rise of instant, low-cost digital sharing practices, however, forces the sociolegal construction of IP as ‘property’ into crisis by contradicting the conception of creative works as commodities that can be exclusively ‘owned’ and exchanged. This cuts into a classic social science debate over how best to balance individual rights against collective interests, which has played out in liberal society through tensions between contradictory principles seeking to uphold the sanctity of private property (the principle of ‘Individual Freedom’) while also correcting social inequality (the ‘Equal Means’ principle). While IP policy has historically developed largely in accordance with Individual Freedom, digital sharing of creative works is premised instead on Equal Means. As these forces collide, the question at stake is whether crisis in the status quo conception of property rights disrupts existing power relations, with implications for the logic of policy development in the digital age. To address this question, I test for continuity of the predominant trend in IP policy-making using recent legislative changes to the Canadian copyright regime. I find that, contrary to expectations, policy changes do not manifestly favor rights-holders. Rather, legislative outcomes are split between modest protections for rights-holders and clear gains for rights of open access. I take this as evidence of the increasing complexification of IP policy in response to mass digitization.     

Copyright Culture and Pirate Politics

This article approaches the recent debates about copyright and piracy from a cultural and historical perspective, discussing how problems surrounding intellectual property rights (IPR) reflect cultural conflicts that are central to cultural studies. It sets out with a study of how international copyright norms developed in nineteenth-century Europe were implemented in two different national contexts: Sweden and the USA. This historical background shows how copyright has been embedded in the cultural history of Europe and intertwined with the idea of an evolving Western civilization. The examples from the past are thus used to highlight the underlying cultural implications that affect the contemporary discussions. Particular interest is paid to how the historical association between the spread of copyright and the development of civilization affects the understanding of Asian piracy and Western file sharing today, and how a multitude of social movements both in the West and the Third World simultaneously challenge the cultural legitimacy of the current system of IPR. Eventually this is also taken as an example of how law and culture intersect and how the broad, interdisciplinary field of copyright studies that has emerged over the last decade can be seen as an extension of the cultural studies tradition.     

MILK BARS,STARBUCKS AND THE USES OF LITERACY

The starting point for this article is the passage on ‘The Juke-Box Boys’ in Richard Hoggart's The Uses of Literacy. This passage is often cited as evidence of Hoggart's residual, Leavisite suspicion of mass culture and his nostalgia for more ‘authentic’ working-class culture. This article moves beyond this critique by discussing Hoggart's account in relation to the broader historical shifts signalled by the development of milk and coffee bars in postwar Britain, and their more recent replacement by corporate fast-food and coffee chains. It argues that Hoggart's critique was not simply a knee-jerk fear of the new; it fed into more widespread anxieties which long predate the media invention of the ‘teenager’ or the emergence of organized youth subcultures. These anxieties were not simply about mass culture and Americanization, but also about cultural literacy, class, the relationship between the public and private sphere, and the losses and gains of rising affluence – concerns that have been increasingly submerged in post-Thatcherite political culture.     

Exploring the Feasibility of Farmers' Rights

In many developing countries, there is concern that a conventional system of plant breeders' rights provides no rewards to farmers for their role in the conservation and enhancement of agro‐biodiversity. To redress this imbalance, developing countries are incorporating farmers' rights provisions in their plant variety protection legislation. This article examines the feasibility of farmers' rights provisions based on intellectual property rights. It argues that the farmers' rights provisions crafted by some developing countries will involve enormous operational difficulties, while IPR‐based farmers' rights are unlikely to provide significant economic returns to farmers or farming communities. At the same time, farmers' rights provisions, as currently conceived, are likely significantly to dilute the incentives for innovation provided to institutional plant breeders.     

What We Should Want with History: A Meditation on Cultural Studies,Methodology, and Politics

This essay evaluates two of the central problems for Cultural Studies as a field: how to generate methodologically rigorous scholarship that is also politically useful; and how to productively use models and theory in the practice of history. Beginning with conversations about the place of (disciplinary) history in Cultural Studies, this essay explores one of the legendary debates in the field: between E. P. Thompson, Perry Anderson, and (at least in theory) Louis Althusser. Though the debate centered on the degree to which the English Civil War could be termed a “bourgeois revolution,” Thompson's fundamental critique concerned Anderson's use of abstract models in history. However, the distinctions Thompson makes are not nearly as clear‐cut in practice – particularly when we look at Ellen Meiksins Wood's attempt to intervene on Thompson's side in her 1991 book The Pristine Culture of Capitlism. Wood's understanding of capitalism relies on an abstract conceptualization of that mode of produciton that is ironically similar to that of Althusser and Anderson. Arguing this as an illustratration of the importance of explicit models and methods, the essay develops Richard Johnson's account of Marx's use of abstraction and theory in his own historical scholarship. Marx's framework is then deployed to reconsider the English Civil War in realation to a key contemporary concern: the origins of copyright and intellectual property. It ends by advocating for what I term anarchic abstraction: a conscious, rigorous, politically‐committed, and dialectical attention to the order and determinations of history with no strict hierarchy given in advance.     

Extracting the commons

This article investigates how resources that are perceived as common are turned into property through different interventions of extractivism, and how this provokes counter-activism from groups and actors who see their rights and living conditions threatened by the practices of extraction. The article looks at how extraction is enacted through three distinct practices: prospecting, enclosure and unbundling, studied through three different cases. The cases involve resources that are material and immaterial, renewable as well as non-renewable, ‘natural’ as well as man-made. Prospecting is exemplified by patenting of genetic resources and traditional knowledge, enclosure is exemplified by debates over copyright expansionism and information commons, and unbundling through conflicts over mining and gas extraction. The article draws on fieldwork involving interviews and participant observation with protesters at contested mining sites in Australia and with digital rights activists from across the world who protest against how the expansion of copyright limits public access to culture and information. The article departs from an understanding of ‘commons’ not as an open access resource, but as a resource shared by a group of people, often subjected to particular social norms that regulate how it can be used. Enclosure and extraction are both social processes, dependent on recognising some and downplaying or misrecognising other social relations when it comes to resources and processes of property creation. These processes are always, regardless of the particular resources at stake, cultural in the sense that the uses of the commons are regulated through cultural norms and contracts, but also that they carry profound cultural and social meanings for those who use them. Finally, the commonalities and heterogeneities of these protest movements are analysed as ‘working in common’, where the resistance to extraction in itself represents a process of commoning.     

EARLY CINEMA'S HEYDAY OF COPYING

Between 1895 and 1909, new American film entrepreneurs complained that ‘copying’ was out of control. Although ‘copying’ may have been widespread, and sometimes referred to as ‘theft’, it was more a worldwide industry practice than an extralegal operation. Before the 1909 US court case that decided the question of copyright in the motion picture, movie producers copied in an attempt to meet the demand for product. My discussion of the notion of ‘copying’, however, is somewhat ambiguous in that I need to make the term cover motion picture print duplication (‘duping’) as well as remaking. Framed by Lawrence Lessig's statement about the contemporary period, ‘copyright is out of control’, I wonder here if today's excessive use of copyright could be foretold in the way in which early cinema pioneers talked about the order that regulation would bring to the new industry. I ask, more specifically, if this early period of unfettered reproduction can tell us anything about contemporary conditions in which the technological capacity to duplicate has outstripped the state's capacity to regulate duplication.     

TAKING THE RHETORIC OUT OF THEORETIC DEBATE: A Rejoinder to Michalski

Michalski's (2008 ) critique of Marshall (2008 ) is rebutted. It is demonstrated that Michalski's response largely fails to address the substance of Marshall's argument, and instead deploys a number of characteristically Blackian rhetorical strategies to obscure the field. These include an inconsistent and opportunistic rejection of philosophical argument, the lamentation of an imaginary victimization, a reliance on reassertion over reasoning, the use of misleading examples, an attempt to turn to the critique against the critic, and the exaggeration of empirical evidence. As a result, his critique is not only unconvincing, but further substantiates Marshall's case.     

Evictions and human rights: land disputes in Bogotá, Colombia

Even though many governments in Latin America, including Colombia, have improved the legalization and regularization of peripheral settlements, recognized the right to housing, and acknowledged the United Nations’ position on evictions as violations of fundamental human rights, urban displacement continues. Forced eviction brings devastation to families and neighborhoods and hampers efforts to improve large areas of the city. Over the past twenty-five years in the hills of eastern Bogotá, growing competition for land combined with the competing claims of squatters, semi-legal settlements, title-holders and government agencies has led to frequent and sometimes violent land disputes. These disputes result either directly or indirectly from public and private development in the area. This paper will document the history of displacement in this sector of Bogotá as a case study in order to evaluate current policy guidelines related to forced displacement.¹ There is a wealth of ethnographic data on the effects of evictions, as documented below, and yet this data, typically in the form of Social Impact Assessment, rarely translates into lasting policy guidelines. Economists, geographers, and other social scientists have also documented the negative effects of forced displacement. This study evaluates current policies from a human rights perspective. I argue that human rights can make land policies not only more equitable but also more efficient in Latin America if our current knowledge about displaced communities can be translated into public policy.     

A home from home: the organization as family

The basic unit of human organization has always been the family, although the meaning and composition of “family” has altered over the millennia of human existence. The current view in Western thought is that there is a distinct schism between the family and other social organizations, particularly those organizations associated with work. As a broad distinction, the family is held to be in the private sphere of human interaction and work organizations in the public. Much feminist theory is predicated on this private/public split, and one of the reasons proposed for the social inequality of women is that the private, which is women's “natural” domain, is held to be of lesser social significance.

The paper considers, in a light-hearted (but we hope not lightweight) manner, the metaphor of the organization as family. We provide analogies between the notions of “family” as a private social institution and the work organization, drawing no conclusions, but providing some small insights into affinities and congruences which blur the private/public distinction. If we assert anything at all, it is this: because the work organization is family, we are able to slip from one to the other each day with the minimum of psychic stress.

“Travail, Famille, patrie” (the slogan of the Vichy régime)     

Against all odds: Revitalization of local self-help alternatives by longterm mental health consumers

The article presents a grounded theory case study of a consumer-run alternative services organization, operated by and for people labeled chronically mentally ill in Michigan. We analyze the organization's emergence and development as a process of revitalization through which participants mobilized to transform their private and public identities. Innovations, including self-disclosure rituals and advocacy strategies, were developed by the group's founder during a period of social dislocation following deinstitutionalization. Subsequently, through their advocacy efforts for and with other consumers, group members laid the foundation for a unique form of locally-based political activism, blending innovative self-advocacy strategies with a critique of conventional mental health care. Active participants' efforts have created a mental health consumer organization that members perceive as an empowering and sometimes rehabilitative alternative within Michigan's public mental health care system.     

Unequal Exchange? Recent Transfers of Agricultural Resources and their Implications for Developing Countries

Plant genetic resources constitute the biological basis for plant breeding and future agricultural development. Their transfer from developing to developed countries over centuries has sometimes been viewed as an example of exploitation, if not ‘biopiracy’. Modern gene flows are different in character and magnitude from historic exchanges, however. This article examines current patterns and finds that developing countries are major net recipients of germplasm samples from CGIAR centres, particularly if ‘improved materials’ are considered. Potentially problematic, intellectual property rights do not currently present major barriers to the availability and use of genetic resources by developing countries. Proposals to restrict flows and redress perceived injustices may reduce the benefits accruing at present to developing countries from germplasm exchanges.     

OWNERSHIP AND THE REGULATION OF WILDLIFE

The use of wildlife resources is governed by a combination of private contracts and public regulations. Most often, private landowners control access rights, and government agencies regulate hunting and other uses. This paper shows that these institutions depend on wildlife values and the ability of private landowners to control access to species that inhabit their land. Logit regressions and literary sources are used to test implications about private hunting rights and state regulations. The data support the view that private, legal, and political forces have led to institutions that vary in ways consistent with wealth maximization.     

Sexual Identity and Transformation at a South African University

Abstract

Despite the proliferation of policies ostensibly protecting all persons' rights, and mounting critical academic debate and scholarship on sexuality and sexual orientation, sexual orientation in the academy remains a site of deep contestation. The first section of this paper discusses the national legal framework as a basis from which the state's new social engineering uses liberal human rights as tools for the democratic transformation of society. In the second section, by focusing on the University of the Western Cape, my critique examines the persisting evidence of prejudice and homophobia in South African society alongside seemingly progressive policymaking and intellectual debate. I consider the centrality of national law and policymaking in the restructuring of the higher education environment and assess the extent to which the new education, labour, and other national policies and legislative measures substantively change the climate and culture of higher education institutions. In developing this critique, I map out some of the everyday struggles which may often be marginalised by an over-emphasis on national and institutional policy making for change.     

Can I own my writings and sell them too? A brief history of copyright in China from the late Qing era to Mao's China

This article briefly reviews the growth of copyright, as an idea, an industrial practice and a state policy, in the context of social transformation in China from the mid-nineteenth century to the late 1970s. Understanding copyright as one dimension of cultural commodification, it aims to reconceptualize Chinese copyright history by focusing on China's development and the transformation of cultural industries and cultural control. It argues that private control over cultural products is not alien to Chinese tradition, and calls for a shift of attention from anti- or pro-copyright assumptions about Chinese culture to the changing political economy of cultural industries that gives rise to certain forms of cultural privatization. It also analyzes copyright's role in state developmental policy and in the reshuffling of social classes and hierarchy.     

Elder Abuse and Neglect in Institutional Settings: The Resident's Perspective

This article strives to share research findings concerning the rights and empowerment of the elderly living in various long-term care (LTC) or residential care facilities (public and private sectors) in Quebec, Canada. Inspired by the theories of constructivism, the research aims to understand the residents’ perception of abuse, as well as the strategies they are developing to exercise their rights and liberties. Data from semistructured interviews with 20 residents, mostly very old women aged 80 to 98, are presented. Results show that residents’ perception of abuse: (1) is conditioned by sensationalistic media coverage; (2) is limited to physical mistreatment; and (3) tends to legitimize day-to-day infringements of their rights, as these “minor” violations seem inoffensive when compared to the “real” acts of violence reported in the media. Tensions that can build up among residents, sometimes resulting in intimidation or even bullying, were addressed.