Emerald Group Publishing Limited
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A Philosophy of Intellectual Property
A Philosophy of Intellectual Property
P.DrahosDartmouth Publishing Company LtdAldershot, UK1996257 pp.ISBN 1-85521-240-4, 42.£50 UK
Keywords Information society, Intellectual property, Philosophy
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A Philosophy of Intellectual Property is a recent and excellent addition to the Dartmouth Series in Applied Legal Philosophy. The aim of this series, as explained by the series editor, Tom Campbell, is to "publish work which adopts a theoretical approach to the study of particular areas or aspects of law or deals with general theories of law in a way which focuses on issues of practical moral and political concern in specific legal contexts". This book meets this objective perfectly and uses theory and analysis to develop a basis for criticism and reform.
This text is, by definition, an ambitious work partly because of the necessity for an interdisciplinary approach. The author explicitly recognises this as a central pillar of the intellectual enterprise he has embarked on and expertly interweaves themes from history, philosophy, law, economics, politics, sociology and technology throughout the book. The interdisciplinarity of the work will come as no surprise to readers since Drahos sets himself some big questions to answer: are intellectual property rights like other property rights?; what are the justifications for allowing more and more of the world's knowledge and information to come under the control of intellectual property owners?; and, what are the implications for power and for justice of allowing this property form to range across social life? However, it must be stressed that this text is very much in the area of applied legal philosophy and prospective readers need to be aware of this. Drahos looses few opportunities to demonstrate the relevance of this deep level of theoretical understanding and frequently applies this to contemporary issues such as information technology, algorithms and DNA sequences.
The book consists of nine chapters. In chapter one, Introduction, the author defines what it means to theorise about intellectual property rights and explicitly identifies what approach he is using. This scene setting approach is useful in that it gives non-specialist readers a basis for the discourse which follows. Drahos adopts a normative analytical approach and this means he is mindful of reaching "ought conclusions of some kind" (p. 3). He is explicit too about what he is aiming for. The book is not about establishing a new justification for private property rights. Rather it is about determining whether intellectual property rights establish patterns of organisation and practices that could threaten negative liberty. By establishing a defensible philosophical view of the role of property in social life and democratic culture, Drahos is aiming to answer the central question by adopting a form of instrumentalism that subscribes to a principle of humanism. With this firmly claimed as the goal, Chapters two to eight build the case.
Chapter two provides a very sound historical overview of intellectual property rights. This is necessary if we are to follow the genealogy of the arguments that follow. Chapters three, four and five deal respectively with Locke, Hegel and Marx the seminal intellectual property philosophers. Drahos demonstrates a very deep understanding of the work of all of the above. He does not simply summarise their work. He cleverly exposes common themes and contradictions in the thinking of these scholars in areas such as: notions of community; the intellectual commons; the state, civil society; creativity, class; and labour. From this basis, Chapters six, seven and eight deal with central concepts of opportunity and self-interest (reflecting economic themes), power (reflecting politics and sovereignty issues) and justice (specifically relating to the justice of information). On the theme of economics, he exposes the considerable limitations of the rationality of perfect competition in dealing with abstract objects.
Drahos points to the field of information economics as a useful vehicle for extending the economic interpretation of intellectual property. Information is a theme which he follows through in his treatment of economics, power and justice and in doing so demonstrates the value of explicitly incorporating information into an analytical framework.
Chapter nine, titled "Intellectual property: for instrumentalism, against proprietarianism", is by far the most significant chapter in this book. It is here that Drahos reaches the normative position that justifies his earlier excellent analytical work. In this chapter he acknowledges the value of post-modernist analysis but swiftly moves on to say that he is uncomfortable with the view that there is no essentialist truth about property. He has a more progressive agenda to promote. This chapter interprets intellectual property within two creeds: proprietarianism; and instrumentalism. The former is portrayed as a set of beliefs which assign to (intellectual) property rights a fundamental and entrenched status. This is backed up by a system of law that operates in a mode of formal rationality. The message is clear: in a world of large corporates, competiton and globalisation, the drive for intellectual property proprietarianism poses huge threats. Opposed to this is instrumentalism which Drahos interprets as an attitude to property that draws on economic approaches to law (p. 214). He is in favour of an attitude that exposes the social costs of intellectual property protection and consequently an approach that makes the distributive consequences of such protection more transparent. In addition to this he endorses a humanist perspective to his instrumentalism. In short, he advocates that talk should shift from seeing intellectual property as natural rights to one of privilege. Putting it another way, he sees that "a danger of proprietarianism lies, in other words, in switching the patent system to protect useful ideas rather than ideas that exist in the form of useful effects" (p. 210).
All in all A Philosophy of Intellectual Property is an excellent book and I predict it will become an important and perhaps central contribution to theorising about intellectual property. Having said this, it may not be without its critics. So wide ranging is its disciplinary coverage that its treatment of topics such as the philosophy of science, theories of justice or power, creativity, and cost-benefit analysis could well be subjected to scrutiny by some experts. But this can hardly be a serious criticism since it is such an ambitious work. This book will have a broader appeal than to legal philosophers, but it is primarily a work in applied legal philosophy. Readers seeking political accounts of the emerging global intellectual property regime, strategies to circumvent proprietarianism tendencies and detailed account of the latest technologies and laws will not find them in this book. They are referred to Drahos's excellent recent articles in the journals Prometheus, The Information Society and Telecommunications Policy which pick up some of these themes. This book is designed to be accessible to specialists in a number of fields such as law, philosophy, politics and economics and have an appeal to anyone involved in policy debates about the information economy. It is a manifestation of what good scholarship is all about as well establishing the author as a pre-eminent thinker in his field.
Richard A. JosephAssociate Professor in TelecommunicationsSchool of Business, Murdoch University, Perth, Western Australia, firstname.lastname@example.org