essay
John Frow
I
A COUPLE OF WEEKS AGO I found out at a Medicare office in
Brisbane that I could no longer claim refunds from Medibank
Private in the same place. Instead, I had to go down the street,
stand in another queue and deal with a separate clerk. She told
me, when I asked, that the separation was made because the
government felt Medibank Private was being given an unfair
advantage over its competitors by having the use of the
facilities of the universal health-care system. Now, this seemed
to me at once bizarre and perfectly plausible: that a government
with an entrenched dislike of the public sector would
deliberately decrease the efficiency of the state-owned,
not-for-profit private insurer in order not to disadvantage the
comparatively much more inefficient private-sector companies.
(If there's a nagging sense of oxymoron in talking about a
publicly-owned private insurer, and a stylistic inelegance in
that string of brawling negatives, it surely reflects the
conceptual disorder at the heart of the health insurance system
in Australia.) II III
The explanation was plausible because it fits a clear pattern,
not only of privatisation of public assets and the running down
of public institutions but also of a mismatch between the
efficiencies claimed and our daily experience of degraded service
and irrational decision-making. Unemployment services,
case-managed health care and personal banking are perhaps the clearest examples, along with the vandalisation of tertiary education and the ABC. Almost everybody is angry about at least some of these things, but at the same time there's little point in making a noise about it. For three reasons. First, people like me have a vested interest (I'd call it a class interest) in the public sector, and indignation looks like an expression of that interest. Second, the dismantling of the public sector has bipartisan support in Australia, where it was initiated by a Labor Party whose major contribution to policy debate in the 1980s was to dispense with it. And third, because there is indeed a rationality to the process: at one level a set of arguments about resource allocation, many of which I accept and some of which may indeed increase equity as well as efficiency; but at another level a set of deeply metaphysical assumptions about the inexorability of the movement of historical forces.
Ironically, those assumptions are structurally identical to the ones informing the societies that built up the public institutions of the nation-state in the first place. Our remembrance of the Victorian period as the heyday of laissez-faire capitalism doesn't quite square with its sustained and massive investment in the infrastructure of a public civic sphere -- sanitation, public hospitals, public schooling, railway and road networks, the postal system, public libraries and museums -- which embodied its vivid sense of historical progress. These were institutions not just for the control of populations but also, and inseparably from that, for their formation as a citizenry. Conversely, what is entailed in the commercialisation of these institutions is a loss of the sense of a qualitative difference between a realm of particular interests and a realm in which a general interest might and should be represented.
The attack on that realm of entitlement by citizenship rather than by ability to pay goes to the heart of what we value in our national political life. I used to own a piece of Telstra; I no longer do. If I think of the state as being inherently oppressive of its citizens, however, then it is only when I have the chance to invest in Telstra directly (and setting aside the question of whether I can afford it) that my ownership becomes real. The failure of imagination here is immense: the very notion of a public good, valuable in itself because common and abstracted from individual benefit, has all but disappeared, or has been displaced on to the empty insignia of national patriotism. We should be realistic about what has been lost, of course: command economies and state welfarism were clumsy and oppressive in their own ways, and the glow that I got from my citizenly ownership of Telstra was never very bright. Something important is nevertheless disappearing.
The concept of public domain -- a commons in information -- is the cornerstone of all Western intellectual property regimes. In the case of patent law, the `laws of nature' have been the key area reserved for the public domain, and there has also been a strong emphasis on making patentable knowledge public; in the case of trademark, it is language itself which is reserved; and in the case of copyright it is, above all, ideas. Yet the concept is a purely residual one: rather than being itself a set of specific rights, the public domain is that space, that possibility of access, which is left over after all other rights have been defined and distributed.
In recent years the concept of public domain has been subject to the same broad philosophical critique which has been directed at the concepts of public good and the public sector by neoliberal advocates of market forces. This critique is based in a Malthusian assumption of scarcity and of the need to ration scarce resources between competing and self-interested individuals. One of its most influential fables has been Garrett Hardin's story of the tragedy of the commons, a version of the prisoner's dilemma paradox, in which the aggregation of what is in each individual's best interest produces an outcome in which everyone comes out worse off overall. In Hardin's argument, given a piece of common pasture, each herdsman who grazes cattle on it will, 'as a rational being', seek 'to maximize his gain', which will then lead to overgrazing and the destruction of the land. 'Each man', Hardin says, is locked into a system that compels him to increase his herd without limits -- in a world that is limited. Ruin is the destination towards which all men rush, pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.1
Insofar as this argument draws upon the model of the European feudal commons in which villagers held coexistent rights, it is historically wrong: the commons were highly regulated by a customary recognition of rights which (like native title) were coincident rather than exclusive, indicating 'that even with respect to scarce resources, a commons need not be a wasteland of uncertain or conflicting property claims. Customary use of the mediaeval commons, even for consumptive uses, had been hedged with restrictions limiting depletion of resources.'2 But the argument to the tragedy of the commons is also conceptually wrong, since, rather than being exhausted by use, knowledge actually increases when it is shared. It 'has peculiar qualities which distinguish it from labour, machinery, raw materials and other components of production. Two people can use some bit of knowledge simultaneously, it can be duplicated ad infinitum at almost no cost, it circulates around the globe in seconds, it is not "consumed" or exhausted as it is used, and the more it is shared, the more it grows.'3
And indeed, in one sense the copyright system does have an important role in protecting the incomes of writers and in fostering writing. But in another sense, the figure of authorship is a screen for a quite different set of financial arrangements. Most of the wealth created by copyright and other branches of intellectual property law is in patents and trademarks owned by corporations, in copyright assigned to film, television and music companies, in industrially produced software, and in databases. The share that writers ('authors' in the traditional sense) have in this wealth is minimal apart from the few signatures that have been successfully converted into brand names. The information industry is serious business, and it has put a lot of energy and money into extending intangible property rights and creating new ones. Let me give some examples.4
The first is from patent law. Within Western intellectual property regimes nature, like language, has traditionally been classified as a 'res communis' which can have no human author. Just as I cannot lay claim to exclusive ownership of the basic materials of the English language, so I cannot patent a natural species or a particular use of a substance found in nature; I can patent what I invent, but not what I discover. The biotechnological revolution of the last twenty years has, however, brought great pressure to bear on the way in which that line between invention and discovery has been drawn. The trend in contemporary law is to allow patents for 'products of nature' as long as there has been some process of transformation or refinement. This is to say that patent law has been shifting towards a more expansive definition of its subject matter, and in particular towards a rather different understanding of that 'common' realm of 'nature'.
In the domain of genetic engineering, a line of patent decisions in the United States and Europe has granted monopoly rights in 'invented' plant varieties and in their reproducibility -- the genetic chain that is the essence of living matter; in genetically engineered organisms, from oysters to the Harvard mouse to the cloned sheep Dolly; and to human DNA sequences. One effect of this shift in the legal status of organic matter is that the world's germplasm resources, largely clustered in the Third World and which have traditionally been considered to belong to the 'common heritage of mankind', are being appropriated at little cost from the world's poorest nations, developed by genetic hybridisation, and resold to the source countries as commodities which are not only expensive in themselves but are bred to be reliant on chemical fertilizers and pesticides manufactured by the agrochemical corporations.
The issue is one of subsidy. The genetic uniformity that has resulted from hybridisation and crop-standardisation has left First-World agriculture heavily dependent on importations from the Third World as a source of genetic variation. Yet this flow, which has enriched the corporate producers of hybrid varieties, has been almost entirely free of charge, since the model of knowledge as private intellectual property works to the disadvantage of the 'almost invisible, informal and collective innovation' characteristic of peasant communities.5 Patent law, which has no hold on 'products of nature', favours innovations deriving from high-tech research rather than innovation by long-term breeding for genetic variety. And the implicit metaphor of authorship which runs through Western intellectual property regimes plays a strongly determinant role in structuring the pattern of distribution: as James Boyle puts it, the chemical companies' scientists fit the paradigm of authorship. The [Third World] farmers are everything authors should not be -- their contribution comes from a community rather than an individual, from tradition rather than innovation, from evolution rather than transformation.6
There is a similar inherent bias in copyright doctrine against traditional forms of collective production which emphasise fidelity to inherited patterns rather than originality, and which may not be 'fixed' in a stable medium like print. The length of time over which copyright is in force has been extended from an original period of twenty-eight years in the eighteenth century to the current period of the author's life plus fifty years in contemporary Australian law (with a possible further extension to life plus seventy years under the GATT accords). Most importantly, however, the very notion of a balance to be struck between the rights of authors and public rights of access to the public domain has weakened considerably. Although all copyright regimes contain exemptions for 'fair use' or 'fair dealing' which allow for limited reproduction of pieces of writing for educational or legal purposes, for news reporting and comment, for review, for criticism, and so on, the recent tendency of copyright doctrine in many countries has been to narrow the fair use exemption quite drastically by foregrounding the notion that it is a subsidy which has costs in rent foregone by the author: copyright is thus seen as a source of a monopoly right to be protected against 'harm' by copyright pirates. One exemplary American case involves the right to parody by means of close imitation. In 1988 the artist Jeff Koons used a kitsch greeting-card photograph of a Californian couple holding eight puppies as the basis for a three-dimensional, multi-coloured wooden sculpture, 'String of Puppies', which was made to his specifications by artisans in Italy. The sculpure was shown in Koons' 'Banality Show' that year, and he was then sued by the photographer for copyright infringement, found guilty, and ordered to surrender his artist proof of the sculpture and to pay substantial damages. In making its judgment the court found Koons guilty of 'piracy', 'plagiarism', and 'wilful and egregious behaviour'.7 This reading of the scope of the fair use provision could be made in part because parody was seen as a non-'productive' use of another text.
Similar problems have arisen in the United States and Europe in the case of parodies of trademarks, where the common law has developed from seeking only to prevent deceit in relation to assurances of quality, to seeking to protect a property right in the connotational value of the trademark. Thus McDonalds has, with some success, sought to restrict use of the prefix 'Mc' even in instances not related to food; George Lucas attempted to exclude public interest groups from using the words 'Star Wars' to describe Ronald Reagan's weapons program; and the organisers of the 1988 Gay Olympics were enjoined from using the word 'Olympics', despite the Court's recognition that it had become a generic term and should thus, like other words which had lost their specificity as designators of a particular product (aspirin, thermos, cellophane, mackintosh, linoleum), be returned to the public domain. A further example, from amongst a vast literature, of this restrictive trend in intellectual property law would be the move in recent years to allow the privatisation of historical materials and of celebrity by means of the so-called right of publicity: the King family's ownership of the image of Martin Luther King, and the copyrighting of the image of the late Princess Diana. Australian law doesn't recognise a right of publicity, but much the same result is achieved by use of the tort of 'passing off'; Paul Hogan used it some years ago to protect his commercial interest in the character Crocodile Dundee.
As a final example, let me mention the negotiations that have been underway in the World Intellectual Property Organisation to extend copyright protection to databases and thus, for all practical purposes, to the facts which are compiled in them. Like ideas, facts have always been understood in copyright law to be exempt from private appropriation; in an information economy, however, databases are an immensely valuable commodity, and there is every chance that this area of the public domain too will be ceded to commercial interests.
1. Garrett Hardin: 'The Tragedy of the Commons', Science 162 (1968), 1244.
2. Carole Rose: The Comedy of the Commons: Customs, Commerce and Inherently Public Property', University of Chicago Law Review 53:3 (1986), 743.
3 .Jim Davis and Michael Stack: 'Knowledge in Production', Race and Class 34:3 (1992), 3.
4. I discuss many of these cases at more length in Time and Commodity Culture (Oxford: Clarendon Press, 1997).
5. Carlos Correa: 'Biological Resources and Intellectual Property Rights', EIPR 14:5 (1992), 154.
6. James Boyle: Shamans, Software and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996), 126.
7. Rogers v. Koons, 960 F.2d 301 (2nd Cir.) cert Denied, 113 S Ct. 365 (1992), at 303, 311, 313.
8. Blackburn, J., dissenting opinions, Sony Corp of America vs Universal City Studios, Inc., 464 US 417 (1984), 78 L Ed 2d 574 at 478.
9. Jessica Litman: 'The Public Domain', Emory Law Journal 39:4 (1990), 967.