16 June 2005

Creativity, Property and Hegel

Stunlaw has become somewhat fascinated by a Hegelian idea of the arguments about creativity and ownership in intellectual property being a fetishisation. In other words, there is a creeping subjectification of objects and an objectification of subjects, through the association of the ownership (or creations) of intellectual property with its owner. Understanding subjectivity as ownership would result in a diminished conception of the individual as it fails to realise that property rights are only necessary to instantiate a legal system capable of recognising legal subjects. Human flourishing, which includes creativity and production, is reliant on intersubjective recognition, in other words, subjects interacting and able to perform rights, duties and obligations to each other (love, friendship, comradeship etc). Rather than a Kantian 'Kingdom of Ends' we instead become a kingdom of objects.

For Kant, an object is defined as something which cannot become a subject, in other words it has no will or subjectivity. Thus, only objects may be subject to property (both things and non-things) and gain their status through their identification as objects by subjects, which is necessarily intersubjective for Kant and Hegel. Therefore property is an intersubjective relationship mediated by property, in other words, each subject takes part in intersubjective moments in order to achieve subjectivity. Through each subject recognising each other in order to facilitate the transfer of objects by contract and exchange, the shared desire the exploit objects results in intersubjective recognition and not treating others as objects themselves (which would break the categorical imperative).

However, for Hegel it is the Abstract Right of property to establish the empty form of subjectivity, rather than personality itself which is actually added as 'content' by the spheres of morality and ethics. The subject is therefore empty and its essence is negativity. Property is therefore necessary to create the form of subjectivity by allowing a borderline created through the activity of intersubjective activity; it forms an empty and formal notion of subjectivity. In a similar way to the use of Lacan by his metaphor of the mask to explain subjectivity, Zizek argues 'this nothingness behind the mask is the very absolute negativity...[which] is the subject par excellence, not a limited object opposed to the force of subjectivity!' (Zizek 1994, The Metastasis of Enjoyment)

This legal subject is appearance with nothing behind it, or for Hegel, there is no noumenon underlying phenomenon. Property is thus a regime with the goal of creating subjectivity through intersubjective recognition. By the recognition of (1) possession, the ability to exclude others from its use, and thus to differentiate between subjects; (2) enjoyment, the ability to make use of the object as the subject wishes, the object is submitted to the will of the subject; and (3) alienation, the recognition by others that a specific object belongs to a specific subject (thus counter-intuitively only when it is taken away, through say selling it is it recognised as having belonged to that subject).

Thus, we should not look to property to understand the notion of creativity as it is only for the production of subjectivity as Abstract Right. It is therefore necessary but not sufficient for creativity to take place. However, it should be added that the level of property rights advocated by Hegel would be only those that allowed the generation of subjectivity as legal subject (which is a limited and preliminary form) and must not undermine the more advanced spheres of morality and ethics. This thin legal right is therefore a guarantee of subjectivity and forms the basis of intersubjective recognition as having the form of subjectivity.

Stunlaw will investigate creativity and Hegel further at a later date.

13 June 2005

Derrida and Code

Stunlaw is taking a reading of Derrida and trying to think about what dissemination (or differance) might mean in regards to undertaking an analysis of a free software or open source project. For example, code is interpreted through machines, it is a mechanical series of processes applied to a given number of inputs to generate an output. Now clearly the context of use of the software will be interpretatively flexible (i.e. a particular algorithm may have different meanings/usage in different contexts) however the algorithm manifested within code has a certain obduracy across a particular community.

For example, 'consensus and running code' is used to describe the IETF decision making processes. But to what extent does the code itself as an obdurate pattern of processes have any form of solidity and concreteness. The compiler is extremely unflexible when it comes to the contruction of a binary version of the code, and the processing that is undertaken should have a one-to-one relationship to the source (bugs allowing). Does this mean that the text of a source file has a lack of interpretative flexibility within the limited community of developers in a particular programming language. And if so, does that raise interesting questions vis a vis cultural incommensurability of concepts and ideas. Can code somehow bridge that gap between languages by its very limited concreteness and need to be tied into a particular system usage.

Does this mean that when it comes to the inter-cultural transmission of data-based processes there is a metaspace of conceptual and interpretative understanding that lies in parallel to everyday life languages. And can these shared spaces that are opened up within computer technologies (albiet restricted, complex and instrumentally oriented towards particular techne) offer an aesthetic dimension? For these collections of source code have a certain rationality and application that allows a certain degree of consensus about their execution (if only agreed between say a compiler and the programmer or a community of developers).

There does seem to be a certain hermeneutic closure at work in code. Maybe this is due to a certain reliance on propositional logic, or its being as (in effect) the abstract representation of mechanical and repetitive operations within a digital machine. But nonetheless, its abilility to encode (perhaps overcode) appearance (whether literary, artistic, musical or otherwise) is an interesting bifurcation of knowledge between a container and the content. A modernist project of separation.

Can we therefore write poetry in code? Or perhaps, is code a form of poetics? It seems an interestingly Heideggerian project of the aesthetic and the real joined at a profound level. Code as the glue between appearance and reality, virtuality and the real; code as the access to reality; or code as reality. In the age of digital reproduction, code is an essential tool in the construction of our shared space of understanding and being. Can the code underlying this construction affect us through its' form (perhaps an object-oriented approach carries an ontology and epistomology that is unconsciously realised in us as subjects of code).

10 June 2005

Hegel, Human Rights and Intellectual Property

Some thoughts related to the question of human rights, moral rights and intellectual property that Stunlaw has been thinking about recently.

Following Hegel in believing that outside of the state there cannot be 'freedom' as 'freedom' requires laws in order to create a 'state of freedom' in the first place:

1. Therefore copyrights as such are instantiated within positive law and it can only be in relation to them that we can have any rights at all. Thus, the state grants certain rights within intellectual property and can set these rights however long or short as it wishes. This is, though, subject to political contestation whereby we as citizens are able to argue and politically come to some agreement about a suitable length.

2. A liberal democratic state is predicated on the principle of a public sphere that gives access to information that can be used in this contestation. Additionally, creativity requires a certain ability to reuse and re-invigorate old works.

3. Property rights and democratic political rights are therefore clearly here in direct contradiction. This can only be resolved through certain necessary exception to the intellectual property rights (such as fair-usage) and term-limits. This is why we see such concern with these issues by classical scholars such as Locke, Jefferson etc.

4. The value of intellectual property is increasing due to our greater reliance on information and knowledge (and entertainment) and therefore there is a general obfuscation of the difference between the physical and immaterial property in order to make the discursive case that they are the same (when clearly they are not - (i.e. non-rivalrous, infinitely reproducible, zero/near-zero marginal cost etc etc). This is to make as much money as possible from ownership.

5. Therefore the difficulty is magnified when you realise that it is multinational corporations that are particularly benefiting from these intellectual property rights, and that to a certain extent, our interest in political contestation of their property rights is anathema to their wishing to make as much profit as possible. They therefore seek to show that copyrights are 'good' for democracy by the roundabout way of demonstrating the quantitative number of products they make and downplaying the qualitative mediocrity/sameness of much of it.

6. We therefore have the spectacularly interesting situation that in effect multinational corporations are acting contra to the very basis of democratic political rights by seeking to own extensive rights to information, knowledge and so on. This is an extremely interesting contradiction in the 'mode of communication'.

However, the basis of the argument is extremely difficult to get across as people are now simply making the assumption that copyright IS property. Additionally Governments are listening very keenly to the multinationals and to the US (which since it become a net exporter of intellectual property has suddenly changed its stance vis a vis full-on protection - it only signed the Berne convention in 1989 for example).

So to cut a long answer short, are human rights can be a way of arguing out of IP? Well, possibly through an argument about access to knowledge etc. However, the difficulty is "what is knowledge?" - i.e. American judges are very keen to try to keep a distinction between information and entertainment and this is something the corporations play on. Are they the same thing? Where is the borderline etc.

Plus, when you are a government concerned about globalisation, threats of job losses, tax losses etc etc. The talk about new clean sunrise industries, 21st century production and the creative/networked/knowledge economy and the discourse of the information society sounds very interesting indeed. Something that costs very little (i.e. legislation to strengthen IP), can be sold to voters (who wants to work in a factory afterall) and looks like the leaders are actually forward thinking and at the cutting edge (i.e. the UK talk from the DCMS about the 'creative' economy).

It is difficult to argue against something that seems to promise so much. Especially when the content industry can put prices on everything (i.e. politicians like hard numbers) whereas the anti-IP people talk about issues like access, democracy and freedom of expression, that to be fair it is difficult to cost in the same way and its hard to see at first glance why they might be affected. Also, frankly the content industry is winning the battle to persuade people that IP and physical property are the same thing.

But anyway, the other question raised is whether moral rights could be used as a defence against copyright terms etc. Well, it seems the answer is not in the short-term as moral rights cause all sorts of problems for the sharing of information themselves (i.e. paternity, integrity) and they might actually serve to strengthen the case for property rights (i.e. by a kind of Hegelian argument that your work is a part of your personality or self).

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