Fictitious Commodities: A Theory of Intellectual Property Inspired by Karl Polanyi’s “Great Transformation”
Alexander Peukert*
Article

  The full text of this Article may be found here.

29 Fordham Intell. Prop. Media & Ent. L.J. 1151 (2019).

Article by Alexander Peukert

ABSTRACT

[T]

he puzzle this Article addresses is this: how can it be explained that intellectual property (IP) laws and IP rights (IPRs) have continuously grown in number and expanded in scope, territorial reach, and duration, while at the same time have been contested, much more so than other branches of property law? This Article offers an explanation for this peculiar dynamic by applying insights and concepts of Karl Polanyi’s book “The Great Transformation” to IP. It reconstructs and then applies core Polanyian concepts of commodification (infra, II), fictitious commodities (infra, III), and countermovements (infra, IV) to the three main areas of IP, namely copyrights, patents, and trademarks, as they have evolved and are currently regulated in international and selected national laws. The analysis reveals that the history of IP can be told in terms of Polanyi’s famous “double movement”: efforts to commodify virtually every reproducible input/output face equally persistent opposition, which points out the disruption that IPRs inflict upon communication and competition. Whereas IPRs dis-embed informational artefacts from the uninterrupted flow of societal exchange and subject them to prior authorization requirements, IP countermovements call for their re-embedding, i.e. their usability irrespective of authorization. From a normative perspective, a Polanyian perspective on IP suggests that IP law and policy should ensure that market-based transactions coexist with non-market modes of accessing and sharing information so that authors, inventors, and other entrepreneurs have as many options as possible at hand, and all members of society possess adequate possibilities to acquire knowledge.

*David A. Hyman is a Professor at Georgetown University Law Center. From 2001– 2004, he served as Special Counsel to the Federal Trade Commission. William E. Kovacic is the Global Competition Professor of Law and Policy at the George Washington University Law School. He served as General Counsel at the FTC from 2001–2004, and was a Commissioner from 2006 to 2011, chairing the agency from March 2008 to March 2009. He currently is a Non-Executive Director of the United Kingdom’s Competition and Markets Authority. The views expressed herein are the authors’ alone.

We received exceptionally helpful comments from Bob Gellman when this paper was presented at the 10th Annual Privacy Law Scholars Conference (May 2017). We also want to acknowledge the helpful comments we received from other attendees at the conference, including Aaron Burstein, Pam Dixon, Sharon Bradford Franklin, Zachary Goldman, David Gray, Lance Hoffman, Chris Hoofnagle, Cam Kerry, Siona Listokin, Bill McGeveran, Joanne McNabb, Terrell McSweeny, Whitney Merrill, Hannah Meyer, Ira Rubenstein, Jay Stanley, Peter Swire, and Omer Tene.