On Intellectual Property

Intellectual Property

This article seeks to elaborate an argument that I had merely touched upon, at the beginning of another article. I would like to reproduce here the relevant portions of that argument first, to facilitate its elaboration here:

…I would like to present my ideological and political stand on intellectual property, which, baldly put, is that it is not, and should not be treated as, property. Intellectual production takes place on the basis of intellectual capital that is too vast to be captured in a few footnotes or references. I stand, as the expression goes, on the shoulders of giants – but on the shoulders of midgets and dwarves as well, as well as on those of millions of silent others who provided real shoulders so that I (and all the other intellectuals of diverse sizes) could undertake intellectual production. Intellectual matter, as opposed to property, belongs to the millions who facilitated its production, intellectually or otherwise. Consequently, neither do I provide references, nor do I quote authorities, although I do offer a bibliography of the readings that have influenced specifically the arguments and ideas I work out here. By the same token, I lay no claim to ownership of anything I write here; however, I do claim full responsibility to answer for what I write here. I therefore make no demand that I be acknowledged by anyone using the ideas and arguments in this article for their own intellectual or other activities; but I do wish for any critiques to be directed to me as the person responsible for presenting the ideas being critiqued. I suspect that some or much of what I have written below will be seen as controversial; particularly in such cases, I wish to claim complete and total responsibility for whatever is seen as controversial.

There are several crucial elements here that need to be spelt out, to strengthen into an argument what I have already asserted is an ideological-political stand. Before I present these elements however, a prefatory caveat is necessary, viz., that these elements, as well as the arguments they will constitute, are premised on the understanding that ‘private property’ is a politically and theoretically invalid concept. The elaboration of that premise will not be undertaken here, though it will be drawn on. Any reader who does not agree with that premise, therefore, may well prefer not to waste his/her time going any further.

That said, the need to proffer these arguments has an immediate urgency, given the current case pending before the Delhi High Court, against Sci-Hub and Libgen, well-known providers of intellectual and academic content on a free basis, brought by the academic publishing outfits Elsevier Ltd., Wiley India Pvt Ltd., and the American Chemical Society, on charges of copyright infringement, demanding that the two free service providers be prevented from operating in India. ‘Elsevier successfully sued Sci Hub for the same reason in the US in 2015 and the American Chemical Society did so, again successfully, in 2017.’ According to one report, ‘RELX, the parent company of Elsevier, had revenues of US $9.8 billion in 2019. (Elsevier’s profits account for about 34% of RELX’s total profits.) By contrast, Informa, Taylor & Francis’ parent company, had revenues of US $3.6 billion in 2019.’ This is particularly significant because these publishers do not pay their journal contributors at all, meaning that the profits they make from the sales of their journals ride entirely on the professional need that academic contributors have, to be seen to have published in their journals – an explicit and brazen exploitation of intellectual labour. More significantly for the arguments I will make here, this arrangement speaks of a relation between the institutional organisation of research and higher education, on the one hand, and the academic publishing industry on the other hand, that not only facilitates this exploitation but in fact requires it – as we shall shortly see.

However, my intention here is not to seek financial compensation for the intellectual labour of the contributors. While I would certainly support any such initiative (of which more later), my focus here is on the nature of such labour itself, and its ‘produce’. Nor do I intend to offer legal arguments in favour of the two free service providers: I have neither the competence nor the inclination to do so. Nevertheless, I hope the arguments I make here will resonate at a more fundamental level in that debate – at the level of framing the arguments in terms of the principles of natural justice that I believe should be invoked in this case. In making these arguments, I wish to reiterate the point made in the passage quoted above: that I will not be making any proprietorial claims to these arguments, because I believe they have devolved into their articulation here through a whole discursive and practical web of earlier articulations, some of which I could reference, but most of which have already disappeared into the discursive unconscious, so to speak, of those earlier arguments. Referencing a few, at the expense of the vast masses that must remain unacknowledged is an injustice to them all; so I make no claims to ownership of these arguments. As above, though, I do claim full responsibility for any statements here that might otherwise be debated, contested or challenged, and hence also bear full responsibility to respond to them – ‘response’, in any case, being one significant root of ‘responsibility’. Where I do offer references, it is in the same spirit – apart from the practical need to provide sources of information.

Let’s begin with the fundamental, germinal question here, viz., ‘What is “intellectual property”?’ The immediate thought that might strike one is that it is an oxymoron, and as such, undoes itself conceptually. But this understanding does not engage with the very real – i.e., theoretical, conceptual and legal – ways in which the term is deployed routinely, and therefore remains an insufficient argument. We need to engage with it in its working, as it is deployed; thus, a working understanding, to begin with, would be a fairly common one: that the term refers to any product of the human intellect, that can be claimed in ownership by its producer(s). Disassembling this further, let us focus on each component of this term separately, and on the term as a whole in the light of that dis-assemblage, starting with ‘intellectual’. Here, ‘intellectual’ not only refers to the human intellect, but serves to distinguish it specifically from (as well as exclude from its compass) other related terms, such as ‘physical’, ‘bodily’, and ‘material’; and usually includes and encompasses other further related terms, such as, say, ‘spiritual’, ‘psychological’, ‘mental’, etc. (The distinction between these sets of terms will become clearer if we simply attach the word ‘property’ to them, e.g., ‘material property’ versus ‘spiritual property’.) It is clear that the term ‘property’ here itself breaks down into three distinct though related (sets of) meanings: (a) a thing that either has or is ascribed certain definite characteristics, or ‘properties’, that it therefore, by extension, owns – e.g., colour, shape, size, mass, trajectory, etc.; (b) the ‘properties’ themselves, i.e., the characteristics that serve to mark a thing (such as those exemplified above); and (c) human ownership of the thing, with the said ownership usually registered through the very characteristics that mark it, or that it, in turn, owns – thus, for instance, the phrases, ‘my red book’, or ‘her vast intellect’, register ‘my’ or ‘her’ possessions, or properties, respectively.

When we bring these two terms together, in the formulation ‘intellectual property’, then, we can see a multiplicity of significations and ramifications. Through this term we could refer then, to (a) an intellectual – e.g., spiritual, psychological, mental – thing, such as a thought, or a belief; (b) the intellectual characteristic itself of the thing – e.g., its spirituality or psychology; and/or (c) the human ownership of the thing as an intellectual thing – e.g., my spiritual belief, his mental state. Common to all these significations, it may be observed, is the fact that they all require, are communicated through, and are manifested in, another thing altogether, which is the material realm of representations. That is, the intellectual properties that constitute the intellectual thing, in all the three senses noted above, must manifest in and through physical, material means (also often referred to as signifiers), if they are to be acknowledged as existing at all. (The Austrian language philosopher Ludwig Wittgenstein’s famous rejection of the possibility of a ‘private language’ is a useful insight here.)

One must not be misled here by arguments that challenge the materiality of, say, belief, or ethics, on the grounds that these are entirely abstract concepts, because such intellectual things as beliefs mean nothing to anyone, not even to the believer, unless they are manifested materially in some way, even to the believer. Thus, even if I believe in a formless, abstract divinity, the words ‘formless, abstract divinity’, spelt out and printed or spoken aloud, constitute a material manifestation of my belief, through which I acknowledge that belief, even if only to myself. This is particularly important if I want to claim ownership of that belief – i.e., I can only claim ownership (even a shared, communal one) only by claiming the material manifestations of that belief as mine. Materiality is thus a necessary, even inevitable condition of being represented, i.e., of all representation(s). Whether those representations are visual, auditory, or sensual, is immaterial, so to speak, to their materiality.

If these arguments are accepted, they reveal two interesting points to ponder: (a) the only way in which these representations – these physical manifestations of intellectual things – can become meaningful is if they are part of a shared, communal understanding of their meanings. That is, the intellectual things manifested in those representations are socially shared. This generates an apparent paradox, which I will, for the moment, only point out. This is: the intellectual things I claim as mine – my belief, my state of mind, my ethics, etc. – are meaningful only because they are not mine to begin with, i.e., they are shared with others in and through the sharing of their material manifestations. I will return to discuss this a little later. For now, we need to note that, for this very reason, we see the second point: (b) both, the intellectual things and their material manifestations circulate as part of a vast sea of representational resources, whose borders are the borders of language itself, whether that is understood generally, i.e., as language itself, or specifically, i.e., in terms of specific languages. Thus, even as I write this sentence, and all the sentences I have ever written, or will write, or think, or speak, I draw on that vast reservoir of representational resources, as well as the intellectual things that were and are produced from and with it, that have accumulated over centuries, and continue to do so. Which means, in short, that the intellectual things we claim as ours, or as produced by us, are in fact produced using that reservoir of representations and intellectual things produced – and more often than not claimed as theirs – by entire nations (as it were) of claimants and users preceding, as well as cohorting with, us.

Needless to add, matters get further complicated when we realise thus, that the things that constitute ‘intellectual property’ are also products of the intellect, as we had observed earlier. That means, not only are they not things that occur naturally, but rather are produced through purposive human activity; it also means that these things can, and often are, claimed as things owned by their producers, by virtue of the labour that the latter invest in that activity of production. But what is produced through this labour, this activity? Obviously not language itself – whether understood as language per se or as a specific language such as English – which, as we noted above, already constitute a vast reservoir of representations that is availed of in the production of ‘intellectual property’. One may speculatively argue that every word, every meaningful sound or scripted character, ever produced, was originally someone’s ‘intellectual property’. But through a continuous process of popularisation, not without resemblance to the ‘piracy’ currently being challenged in the Delhi High Court, these ‘intellectual properties’ gradually fed (and continue to feed) the reservoir of representations that come to constitute (any) language. Continuing with the same speculation, and extending the metaphor of the sea/ reservoir, one could also conceive of such representations being further constructed by someone into ideas, understandings, even entire discourses, that then similarly get appropriated, or ‘pirated’, and eventually circulate as commonly shared representational currency (the idea of digital currency, for instance, is already becoming a non-proprietorial, commonly circulated one, with a discourse accreting around it and continuously reconstituting it, in and through that very process of circulation).

These speculative arguments help address the apparent paradox noted above, about how the things that constitute ‘intellectual property’ can be owned and shared at the same time. However, the question posed earlier – i.e., ‘what is produced through this labour, this activity?’ – remains open. The seemingly simplest answer to this question is, ‘representations’; but of course, matters are not so simple, because we now need to raise the question, ‘What are representations?’, because the answer to the earlier question centres on what we understand by this term. This seemingly innocuous, simple term has had reams written about and on it, in multiple fields and disciplines, including philosophy, psychology, linguistics, literature, film and media studies, mathematics, art and aesthetics, among others. I will not presume to review that library of works here, not only because it would be impossible to do so in the scope of this article, but because I intend to focus on a rather minimal and limited understanding of the term, i.e., as it pertains very specifically to the questions posed here, pertaining to the production of representations, in and by the labour of a purposive activity. To combine and rephrase those questions accordingly: ‘What is produced in the production of representations?’ The minimal and limited answer would be, ‘The material thing that is used to represent an intellectual thing.’ Immediately though, we realise that it is not one, but two activities involved here, leading to two distinct but related products: one, the production of the intellectual thing, and two, the production of the material thing that represents the first.

It may be argued at this point that there are actually three activities of production here, not two: the third one being the production of the material thing that is represented in the first place. For instance, the three activities could be the productions of:

  • an idea (say, of a table);
  • its embodiment(s), i.e., in the production of
    1. sounds (speech, music, song);
    2. script (alphabets, characters, ideograms that combine to make words, sentences, etc.);
  • images (art, photographs, film);
  1. sculpture (in stone, clay, paper, dough, etc.);
  2. performance (dance, mime, theatre);
  3. electronic bytes (digital media);
  • other material media that either don’t come to my mind immediately, or have faded away into history, or even perhaps have yet to emerge in the future;
  • the table that is represented in the first place – referred to in some theories of representation as ‘the referent’, i.e., that material thing which is referred to by the representation.

It could be argued, further along these lines, that each of these activities is not only integrally related to the other two, but actually requires the other two, whichever of these activities we examine. It may also be argued that all three activities are linked by, and share, the fact that they are productive activities – i.e., productions. These are significant caveats, which I will return to later. For now, however, bearing in mind my immediate focus, and the question posed through that – i.e., ‘What is produced in the production of representations?’ – I will attend only to (the relations between) the first and second activities. In other words, I wish to focus immediately on the material thing produced to represent an intellectual thing that is also produced – i.e., on the fact that they are both productions, i.e., they are both produced through the labour of purposive activity.

We had noted earlier that it is precisely this labour of purposive activity, leading to the production of an intellectual thing and a material thing that embodies it – the representation – that allows the claim to ownership of the said things. For instance, I cobble alphabets together here into words, sentences and paragraphs (the material marks that are visible representations) that construct an argument or set of arguments. These in turn constitute an idea or set of ideas that participate in, engage with, and extend an existing discourse or set of discourses on representation, ownership, rights and piracy (that have pertinence to the case noted above). The current and dominant understanding of these issues – based on which the case has been filed in the Delhi High Court – would allow me to claim ownership of these ideas, through ownership of the specific organisation of their representations that I, through my purposive labour, have cobbled together in a specific way here. But my claims to ownership mean nothing unless there is someone else who wants to claim – or even just use – what I have produced, materially and intellectually, through my labour here. Meaning that, claims to ownership must be established and acknowledged, not just by the claimant, but by everyone else, especially those who may either want to stake a similar claim on, or seek to use, that which is claimed by the claimant. Most importantly, such claims to ownership must also be acknowledged and ratified by law – i.e., by the state. In other words, ownership is a socially, as well as a legally, determined phenomenon.

Here, however, we run into a problem: the labour expended in the physical organisation and articulation of these representations – through what I have called the cobbling together of alphabets, etc., i.e., the labour involved in the production of the material thing – is clearly evident; the labour involved in the production of the intellectual things that are thereby represented, however, is less clearly mine, and therefore claims to ownership of those things are more easily contestable. The innumerable intellectual things that are also cobbled together to produce the arguments I make here are without a doubt already in wide circulation, and my sole basis for claim to them – should I choose to do so – would be the mere fact that I have cobbled them together into a particular articulation of ideas and arguments. This would follow settled practices of establishing ownership – for instance, following a particular format (say, as an article with a specific title, with my name and institutional affiliations, subtitles and sections, references, footnotes, etc.). This particular ‘product’ I might then (but do not, here) claim, are uniquely the production of my intellect. Matters are further complicated when we realise that the material things embodying these intellectual things are (and often have to be) reproduced and circulated through means and mechanisms over which I often have little or no control – i.e., the process of publication, through the publication industry. In other words, I have copyright over my intellectual things, but the ownership of the material things that bear and convey my intellectual things lies with the publisher who owns and publishes the magazine, journal, book, website, record, disc, etc., in and through which my intellectual things are transmitted to the public.

The term ‘copyright’ here is particularly significant: it denotes ‘ownership of the right to copy’; this usually lies with the ‘author’ or his/her representatives. What is glossed over, however, is the fact that the publisher has already ‘copied’ the author’s intellectual product (usually many times over, depending on the number of copies printed, or the number of times access to their website is purchased) and has sold that product as a material product, in the form of journals, books, web-posts, etc. Two arguments need to be countenanced here:

  • that this ‘copying’ is with the explicit permission of the author, who either waives all claims to compensation for granting that permission, or is compensated with a mutually agreed upon remuneration, validated by the state in the form of a legal agreement drafted in accordance with the appropriate laws governing such deals;
  • that it is the publisher, and not the author, who bears the costs of the material publication and distribution of the author’s work; as such, the publisher also has ‘ownership of the right to copy’, at least the material things that bear the products of the author’s intellectual labour.

These arguments are raised particularly when questions of plagiarism and/or piracy are posed, because both (i.e., plagiarism and piracy) are considered forms of theft: the former term is usually applied in cases where an author’s work is reproduced by another, without acknowledgment and credit to the former; while the latter is used when entire works – articles, books, music, etc. – are reproduced and distributed without permission from either the author or the publisher. In order to understand the implications and ramifications of these two terms (i.e., plagiarism and piracy) and their invocation, however, we first need to engage with the two arguments posed above (which, it may be noted in passing, correspond roughly to the two terms).

I will deal with the second of the two arguments first: it is true that the publisher bears the cost of publication and distribution. As such, the publisher’s investment in doing so is certainly adversely affected by acts of piracy. However, there is a prior act of unacknowledged piracy, undertaken by the publisher itself, viz., the piracy of the author’s intellectual things. In claiming ownership of the material things that bear the author’s intellectual things, inevitably, the publisher acts as owner of the latter as well, even though s/he is not, actually. It is true that the author authorises the publisher to do so, and in many cases – e.g., in the case of book publications – the author does get compensation for this authorisation by way of royalties, or a commissioned, one-time payment, or a combination of both, etc. However, as I have argued above, the intellectual things produced by an author – any author – are no more his/hers than is the language in which it is written – or any system of representations s/he uses, including art, music, etc. To claim ownership of such intellectual things is somewhat akin to the manufacturer of a heater claiming ownership of the heat it produces; or that of an air filtration unit claiming ownership of the filtered air it produces. However, it is only somewhat akin to these, because the claim to ownership of intellectual things is even less valid a claim. This is because all intellectual things have value only in their meaningfulness, and however that is construed, it is always a social phenomenon. Following an idea that the French theorist Roland Barthes is responsible for, meaning is produced as much by the reader, as ‘scriptor’, as by the ‘author’. For instance, I can no more claim ownership of the arguments I present here than you, the reader, who makes it meaningful to yourself (or not), by engaging with its representations (or not).

This is probably a somewhat difficult argument to comprehend, let alone accept. The difficulty lies, I believe, in the widespread and unquestioning acceptance of the idea of ‘private property’, alluded to at the beginning of this article. This is so deep-rooted an idea that, even if it is challenged theoretically and politically, that challenge itself often relies on an authority referred to as its owner, e.g., Karl Marx; or it is claimed by the challenger directly as made by him/her, indirectly, if not directly. This in turn is probably because ‘property’ has been conventionally considered material (hence the qualification, ‘intellectual property’, to indicate a putative difference); but regardless of that, the idea that property can be owned privately is at the root of the idea that intellectual property can be owned privately, whether by the author or by the publisher. And if we are agreed that ‘private property’ is an invalid idea, then this alone also challenges the possibility of privately owned intellectual property. However, two further doubts may be posed: (1) intellectual property is the product of intellectual labour, and hence cannot be equated to claims to privately owned property; and (2) if intellectual property is not a product that the author can lay claim to, if not the publisher, then what is produced through the author’s labour?

The first doubt may be addressed through an analogy: a craftsperson produces something material through physical labour, which s/he can claim as his/her private property; but s/he can only undertake production in the first place by acquiring the raw material from someone else, or somewhere else, and working on it to produce a finished work – say, a table. The act of purchasing, or acquiring it from someone else is a transaction, which means that her/his product is already in the realm of the social, and it can only be comprehended as private property to the extent that the transaction is recognised, socially and legally (as noted earlier), as the acquisition of private property. If s/he then sells it, it is part of a further social transaction, through which it ceases to be hers/his in any way. Furthermore, the craftsperson inevitably has to apply a degree of intellectual labour to the making of the product – which is why the Italian thinker Antonio Gramsci reminded us that the division between physical and intellectual labour is itself a false one. But in the same sense, the author of an intellectual property certainly ‘owns’ the physical representational patterns that constitute the vehicles of the (say) arguments or music s/he creates, and is entitled to sell the same; but that does not entitle her/him to claim ownership of the arguments or music represented therein and thereby, because those are premised on the participation of a meaning-making reader/listener/responder.

A simple example can illustrate this: if I buy a table, I do not expect the carpenter who made the table to charge me a royalty on every use of the table qua table, i.e., as something to place things on – an interpretation of ‘table’ that we all share. However, suppose this were the case – i.e., that a royalty had to be paid for every use of the table qua table. Then, if I purchase the table to use it for some other purpose (perhaps turning it upside down and using it as a bob-sled), then I have interpreted ‘table’ differently, and I don’t owe the carpenter anything more than the cost of the wood and his/her physical labour, because I am using a different interpretation of ‘table’. By the same token, if I buy a book authored by say, Ludwig Wittgenstein, and written and published in his native German, I cannot recognise any claims to ownership that Wittgenstein might have, to the arguments in the book, because I cannot understand the arguments at all, let alone interpret them. Further, if I make the effort to study German and manage to interpret the arguments, I am still not able to concede ownership of the arguments because I have interpreted a set of representations that I have purchased, and as such, I am the ‘scriptor’ of the intellectual things in the book, and as such, am as much its author as the actual author.

Which brings us to the second doubt: what then is produced through the ‘original author’s’ intellectual labour? I suggest that the authors of intellectual labour produce no more than representational sites for the transaction of meanings between him/her and the reader/viewer/listener/etc., in the larger social sphere where such transactions continuously take place. The extent to which an author can maintain control over the process of transaction of meanings, marks the extent to which that author can influence the extent of his/her impact as a discursive figure – i.e., a figure around whom a discourse comes to be structured – in that larger social sphere. This is the point that Foucault seeks to make in his well-known article, ‘What is an Author?’: that authors become discursive and institutional anchors to which all interpretations of their writings – articles, books, music, etc. – have to remain bound. As importantly, the idea of ownership rights (to private property) was extended to apply to the ideas and arguments made in the representational text by the ‘author’, so that any use of the text and/or its ideas and arguments could be considered theft, unless the said user had clear permission for that usage from the owner-author, permission that often has to be purchased. Thus, the site of production of meaning is itself (sought to be) controlled by the author-owner.

The point to note here is that historically, several significant institutions emerged precisely to facilitate, and perhaps even demand, this authorial programme to control discourse. Certainly in Western Europe, since the eighteenth century, as Michel Foucault and others have suggested, the role of the intellectual as a shaper of public opinion was instituted and furthered, enabled substantially by the growth of the publishing industry, the invention of newspapers, journals and magazines, and the establishment of the institution of literary and aesthetic criticism. In fact, this is also when ‘aesthetics’ emerges as a philosophical concept, and field of inquiry. Tellingly, the idea of copyright also emerged in this period:

At first, the “copy right” was used to censor printing by giving the Crown the ability to confiscate unapproved books. By 1695, however, the concept had come to imply a permanent monopoly over the publishing of maps and books — a monopoly that was jealously held by the Crown-chartered guild of printers and booksellers. That changed in 1710, when Parliament broke the monopoly by passing the Statute of Anne, which established fixed term limits for copyrights.

This was closely linked to the creation of new and discrete disciplines of knowledge, and the emergence of the ‘expert’ as a socially significant figure in the making of policies in every field of human activity, thereby redefining the role and operations of the institutions of learning, especially the universities, in relation to society and to the state. The web of these relations together constitute a smoothly interlocking machinery for the protection of the ‘private property’ that ‘intellectual property’ is understood to be.

(Indeed, it may be observed in passing here that these ideas – of ‘private property’ and ‘intellectual property’ – are mutually reinforcing, because they are both founded on the crucial idea of a ‘private self’, that owns ‘private property’ – property that could be either in the form of non-human capital or just human labour. This ‘self’ then engages in the production of products that might be either ‘physical’ or ‘intellectual property’ (with the latter often used to control the former process – what Marxist theory in particular refers to as the making of ideology) for transaction in the larger political economy. Another point I would like to make in passing is, the enormous role played by imperialism and colonialism in carrying these institutional arrangements of knowledge production, as well as of the idea of the intellectual as the owner of specialised learning, to the rest of the world.  However, this is not the place, and nor is there the space here, to elaborate these two points. Suffice it to note that, while the idea of the author is not unique to European history, the meanings it had in the precolonial past of the colonies certainly underwent a dramatic change under colonialism – as much through the injection of European ideas of the self, as through the emergent discourses of authorial copyright.)

To return to the point of discussion above: it is worth looking a little more closely at how this protective apparatus works. Take the case of the author of a particular book, or piece of music. The apparatus links this ‘expert’ (the author-owner) to the publication industry that protects his/her (and thereby their own) rights over the intellectual things they produce; and links both of them to the home-site of the ‘expert’, viz., the institutions of learning and research. These institutions (universities, colleges, research centres, libraries and museums) demand that the individual ‘expert’ be certified and ratified by them; that s/he rely on them for the upkeep and maintenance of his/her ‘expertise’; as well as that her/his ‘expertise’ be subjected to continuous assessment and evaluation by them. Thus, an integral aspect of that assessment and evaluation is the demand that the expert continuously ‘produce’ evidence of her/his ‘expertise’, as well as of its continued relevance, the criteria for both of which are again set by other such ‘experts’ in these very institutions. An integral part of determining these criteria is the policing of disciplinary boundaries as well as of disciplinary ‘traffic’, i.e., the regulation of the movement of the ‘product’ from author to reader. This is undertaken through generic and other forms of taxonomy and categorisation, as well as through the allocation of institutions and of institutional funding for those works and their processes of production. This institutional apparatus, and the infrastructural arrangements that sustain it, protects the author by ratifying his/her claims to ‘authority’ – i.e., to the ‘originality’ of his/her intellectual product, and thereby also ratifying his/her claim to ownership of that product.

As many may immediately recognise, this is one of the fundamental reasons for the prevalence today of the ‘publish-or-perish’ culture, especially in the global North, also referred to in popular parlance as ‘the West’. This is closely related to the emergence of academic jargon in almost every field of inquiry – after all, specialists must be seen and heard as beings different from the laity or the generalists. Inevitably then, the heavier and denser the jargon, the more insular the field of inquiry or discipline becomes; the more incestuous its constituency turns; the more complete the echo chamber into which that discipline is pushed; and thus, the more it secedes from the world outside the academe. A small example should illustrate this: there are 232 journals devoted to ‘political science’, 150 journals committed to ‘sociology’, and 99 journals devoted to ‘history’. Yet despite the proliferation of work in these fields denoted by these numbers, there is little, if any at all, mention of these journals, let alone the work they carry, in the larger public domain engaged with by the print and electronic media. In short, very little of what is discussed in these journals reaches the public that – in many places, and certainly in India – pays for it – not just in the form of their children’s’ fees, but in taxes, education cess, etc. (Which is why I choose not to publish this article in an academic journal, but in an online, free, political website).

This brings us to the first argument that we had to deal with, which we have postponed addressing for so many pages, viz., that authors give permission to publishers to copy their work, and therefore what the publisher does cannot be piracy. It is clear now that authors have little choice but to allow publishers to publish their work (unless they undertake self-publication, a phenomenon that is increasingly on the rise, but the discussion of which we must leave for another time). The publish-or-perish culture ensures that authors – especially of academic research – must submit their work to peer-reviewed journals that are acceptable to the institutions of learning, in order to be recognised as ‘experts’ undertaking ‘productive’ work. For the professional academic, his/her daily bread depends on such recognition, so that, even if very little of what they ‘produce’ actually eventually reaches the public domain, they must continuously ‘produce’. This is how the production of knowledge is domesticated and sanitised, made safe; it is also how the producers of such knowledge, however revolutionary they or their productions might be, are monitored, regulated and disciplined. It should be obvious by now that this is an arrangement in which both, the institutions of learning as well as the publishers, benefit enormously from the labour of the academic, with little compensation for the latter; what is not so immediately evident is that the academic also participates whole-heartedly in this process, because of its inherently competitive dimension. That is, the greater the ‘production’, the more likely the ‘producer’ hopes to benefit, in terms of promotions and grants, and in some systems, the ability to negotiate for greater salaries, etc. – all of which create an intensely competitive environment, but for disproportionately small gains. Hence the saying, ‘The politics of the university are so intense because the stakes are so low.

This process, however, is not just about the perpetuation of a system of participatory exploitation, as it were, although this is an important function it plays (in India, this is also buttressed by the mythology of the selfless guru, the ascetic teacher, whose sole reward lies in the pursuit of knowledge, and nothing else – not unlike the ideology of the selfless mother who sacrifices everything for her children). As, if not more, importantly, the surveillance and sanitisation of knowledge production through this process is also achieved by making it exclusive – not just by isolating it in dedicated spaces like universities and research centres and libraries, but by building discursive walls, specialist languages (or jargon) and protocols, to pass through which the unsuspecting seeker of knowledge will have to converse with the wall, in its language, and thereby become one with it – just another brick in the wall, as the old song goes. This is also how the role of opinion maker has, over the last few centuries, gradually shifted from the academic ‘expert’ to media personnel, like newspaper editors, radio jockeys and television anchors, to the point where to say something is ‘only’ of ‘academic interest’ is to denote its irrelevance. Thus, knowledge that is produced in the institutions of learning reaches the public domain, if at all, only through the mediation of the media (in talk shows with ‘expert’ guests, for instance, or the occasional OpEd piece by academics in newspapers) while its application is mediated by technocrats and bureaucrats (in the form of the acquisition, administration and management of technologies resulting from academic research).

It is now an appropriate moment to return to the third caveat that I had touched upon many pages ago, viz., about the third activity of production, the material thing that is referred to by the representation. The reader may recall that we had identified three activities, but had focused thus far only on the relations between the first two, i.e., between the material thing that is produced to represent an intellectual thing – also referred to in linguistics as the relation between signifier and signified. However, we must now attend to what happens when that which is referred to by the representation – the material thing – also comes under the ambit of ‘intellectual property’. Going back to the example of the table, let us say that it is produced by a carpenter, based on a picture of a table, along with accompanying details of measurements and instructions as to how to make it. The picture, measurements and instructions constitute the representation: the table that is produced, the referent. A lot of the debate around ‘intellectual property’ is centred on this relation, because this has direct relevance to the public domain, as well as to the processes of production in the larger political economy.

The most common scenario here is the case of intellectual labour resulting in the industrial production of material things – e.g., patents for inventions and other scientific and technological innovations – that are then used or sold as entities in their own right, i.e., as divorced from their intellectual producers. This is possible, of course, only under conditions of mass production, where each product is not individually designed in and through the intellectual labour of its designer; rather, the design is replicated industrially, mechanically, so that the intellectual labour is completely subsumed to the point of near negligibility. While the patents or copyrights asserted by the ‘original author’, or producer, may well bring in royalties, the product itself, as well as its actual sales, lie completely outside his/her purview. Even more significantly, how the product is used also lies outside the purview of the ‘original author’; to go back to our example of the table used as a bob-sled, there is no reason for the user to pay the ‘original author’ the part of the cost that goes towards his/her royalties. But, by that same token, the mass producer of the table also cannot claim piracy or plagiarism if someone else copies the design and mass produces the same thing. In fact, as noted earlier, it is the mass producer (whether industrialist or publisher) who commits piracy, by mass producing the material thing that embodies an intellectual thing, as if they own the intellectual thing itself (a sort of inverted trojan horse process).

The question that arises here – and that we will engage with briefly, in conclusion – is, How then does one compensate the ‘original author’ for his/her ‘original’ production? It goes against any principle of natural justice that such an author’s intellectual labour should not only not be compensated, but should be exploited by others, who might use the product of that intellectual labour to benefit themselves, without compensation to the ‘original author’. The answer to this question requires a fundamental re-conceptualisation of the political economy itself. Or rather, it requires that we first realise the extent to which our understanding of compensation-for-work is rooted in a capitalist ecology, and then a reconceptualisation of that ecology. Imagine, for a moment, a ‘free market’ in which the production and reproduction of goods could be undertaken with no need for license or copyright. Apart from removing the cost of acquiring that license, leading to cheaper production, the points of competition would be factors like the quality of the product, marketing, and pricing itself – not the monopoly over license and copyright. In such a scenario, the ‘original author’ is incentivised to produce ‘original intellectual things’ solely for the satisfaction of doing so. His/her labour in doing so however, can and should be compensated – whether through institutional mechanisms such as wages; or through the author him/herself selling the intellectual thing at a value determined by him/herself; or through commissions, grants, honorariums, etc. – the specific mechanisms lie outside the purview of this article. But it should be clear by now that the logic of copyright (and its cousins like patents) is not only a flawed one, but a profoundly exploitative one, that must be done away with as soon as possible.

Prem Kumar Vijayan is a professor of Delhi University



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