Towards a Critical IP Theory: Copyright, Consecration & Control

Abstract

Intellectual property jurisprudence increasingly informs the way in which social order is maintained in the twenty-first century. By regulating cultural (re)production and patrolling the dissemination of knowledge, copyright law mediates the exercise of important social, political, and economic rights, thereby playing a critical role in the construction of our information society. In theory, ostensibly neutral ground rules guide the allotment, enforcement, and vindication of rights pertaining to creative works in a way that best advances the constitutionally mandated purpose of the copyright regime: progress in the arts. But, in reality, copyright law’s procedural and substantive doctrines do more than just advance “progress in the arts” and can serve as powerful tools for the regulation, control, and manipulation of meaning.

In recent years, scholars have begun to assess the relationship between intellectual property rights and cultural hierarchies, including those based on race, gender, orientation and class. Towards a Critical IP Theory first identifies this emerging body of literature — one that it refers to as “critical intellectual property” scholarship — and locates its origins in the common methodology of the more mature critical legal studies and critical race theory movements. The Article then builds upon the extant critical intellectual property scholarship by focusing on three moments of analytical interest for critical intellectual property inquiries: (1) the creation of rights; (2) the assertion of rights; and (3) the adjudication of rights.

In drawing on a wide range of examples — the transformation of Shakespeare and the opera from popular entertainment to elite-only culture in late nineteenth century America, the comparison between the RIAA’s response to the federal government’s unauthorized use of music at the American detention facilities at Guantanamo Bay and its high profile litigation campaign against unauthorized individual file sharing on the Internet, and the use of aesthetic considerations in juridical responses to send-ups of two American classics (Gone with the Wind and The Catcher in the Rye) — the Article illustrates how the vesting of copyright protection, the enforcement of copyright and the implementation of copyright doctrine in the adjudicative process can maintain and perpetuate cultural hierarchy. The Article therefore introduces a theoretical framework for studying just how copyright transcends its small corner of the legal universe by shaping social structures and regulating individual behavior as part of a larger hegemonic project. In the end, Towards a Critical IP Theory ideally represents a helpful step in the development of a nascent literature that examines the broader societal impact of intellectual property rights.