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JILT 1997 (2) - Philip Leith 2

James Boyle's

Shamans, Software and Spleens: Law and the Construction of the Information Society.

Harvard University Press, 1996. £23.50
270pp including appendices & index. ISBN 0-674-80522-4

Reviewed by
Dr. Philip Leith
Queens University Belfast
p.leith@qub.ac.uk

Contents

1. Introduction
2. Boyle's Thesis
3. Boyle's Conclusion

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This is a Book Review published on 30 June 1997.

Citation: Leith P 'James Boyle's Shamans, Software and Spleens:law and the construction of the Information Society', Book Review, 1997 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/bookrev/97_2leit/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_2/leith2/>


1. Introduction

For several years now we have seen writings appear on the linkage between law and the new technologies. For example, Ethan Katsh [1] has written on information and law, but there have also been numerous other articles on the subject. Many of these have emphasised the importance of information as a property right in these new developments and have suggested that copyright, for example, may well be an outmoded form of protection in a world where the nature of the digital copy differs significantly from the printed copy. Certainly, 'information' has been a concept which is appearing much more frequently in the writings of lawyers than it has in the past, as well as in judgements from the courts.

There are several reasons for this interest in information. Most obviously, we live in what is becoming - as Boyle's title suggests - an 'information society' so we can expect lawyers to try to understand the socio-economic context which this might entail. But, also, we are seeing a situation where information is becoming commodified. This commodification of information is being explicitly encouraged by various legislative bodies and property rights are being built up which, until recently, had insubstantial existence. As an example of the encouragement of this 'information market' we can see the recent EU Commission Green Paper on Copyright and Related Rights in the Information Society which suggested:

2. These new services and products, to be provided via the information superhighway, will either make use of existing works or will lead to the creation of new ones. Existing protected material will often have to be re-worked before being transmitted in a digital environment; and the creation of new works and services requires substantial investment, without which the scope of the new services being offered will remain very limited. This very range and variety of services will encourage the development of infrastructures. Without that contribution there would be little point in investing in infrastructures, at least for the range of services offered to individual consumers, oriented mainly towards leisure and education. The creative effort which provides a basis for investment in new services are only worthwhile and will only be made if works and other matter are adequately protected by copyright and related rights in the digital environment. [2]

and the GATT agreement has enforced IP rights as part of the 'free trade' philosophy.

The rationale for the encouragement of new rights and stronger existing rights in the information market is the same as that has been historically used to support patent rights, i.e. that economic benefits to society flow from having these. However, not all agree that stronger rights imply stronger benefit. In a recent lecture, Jacob J [3] suggested that he had reservations about these stronger rights (the title indicates this unease - 'Industrial Property - Industry's Enemy?'), and that he was following the concerns of both Laddie J [4] and Hoffman LJ [5] . Such concerted concern from UK intellectual property judges is surely worth noting.

When we actually get down to examining the economic case for intellectual property rights we find rather less evidence in actuality than proponents claim exist. This is not to say that there are no benefits, but that they are very difficult to adjudge. For example, the case of software protection has as many economic arguments in favour of restricting protection as there are in favour of granting it. And the benefits which accrue to national economies from patent rights are notoriously difficult to quantify.

2. Boyle's Thesis

It is into this debate that Boyle steps. He is particularly interested in determining the rationale for the growth in intellectual property rights and the extent of these rights. His technique for doing this is to look at the concept of information itself and how it is treated in law. This explains the title of the book: the taking of medicinal knowledge from Shamans in the Amazon basin and making it proprietal to the Western drug companies without economic benefit flowing to the society from which that knowledge was derived; the extension of patent rights to software, through a US patent office and appellate judiciary who are supportive of these rights; and the case of Moore v Regents of the University of California concerning the taking of cells from a patient for commercial use without benefit accruing to the patient. In fact, his exemplars are wider than this: including theories of blackmail and insider trading.

The basis of Boyle's thesis is that there has been a lack of a clear analytical method which would allow us to understand what is going on in debates and judgements about 'information'. His text is thus to be welcomed since too often, in writings by other authors, we are given the concept of 'information' as though it was an atomic entity which simply existed to be passed between individuals and/or computers. Why, he asks, should some information be protectable and other information not?

Mark Rose's text, Authors and Owners: the invention of copyright [6] can clearly be seen as a sister text to Boyle's. The subject of Rose is that of the 'author', and how this has provided the basis for extensions of copyright. Ironically, the author does not always gain the economic benefit which the rhetoric argues is his right. Boyle, however, takes this further and argues that it is the romantic concept of 'author' which is the intellectual basis upon which a whole host of rights in information are being awarded, not just copyright. By taking raw facts or raw information or information from the public domain and adding the essence of 'authorship' is the means whereby the individual has laid claim to a wider variety of intellectual property rights than would have been allowed if the 'author' label was not claimed.

There has been much discussion of modernity and postmodernity, with the digital world being seen by some as a clear example of the arrival of 'postmodernity'. However, if Boyle's thesis correct, we might say that the 'information society' is really the zenith of modernity, rather than an aspect of postmodernity: the idea of the author (as a romanticised agent of creativity) grew with the printing press as writers such as Walter Ong [7] have suggested and discussed. Prior to the print-world, the idea of 'authorial creativity' was viewed negatively: academics continually tried to argue that they were actually returning to the classical ideas of, for example, Aristotle. And in poetry what was respected was technique, not the expression of the inner soul. The concept of 'authorship' has thus changed during the past four centuries and these perspectives have given way to the notion of the basis of authorship being 'creativity' and that this creativity demands reward. It is this (relatively) recent notion of author which is used to justify the extension of intellectual property rights according to Boyle's argument.

3. Boyle's Conclusion

In legal terms, Boyle's conclusion leads him to several suggestions, for example:

That sui generis forms of protection may well be much more appropriate for those entities (such as software) which we feel should be protected. The argument here is that manipulating concepts of patent and copyright to cover needs of a completely different entity is inefficient - "we could do better than the two-sizes-fit-all scheme we have at the moment" (p171).

That the public domain requires more protection. In order to protect this, Boyle suggests it is not necessarily the case that intellectual property rights should be abandoned, only that they might require to be changed or to differ from their present form.

Many academics (and, perhaps, judges) who are aware of the ever-expanding nature of intellectual property rights would agree with these suggestions - even though they are limited in radicalism. Why this limited view of what can be done? It seems to be difficult to push back the hegemony of increasing intellectual property rights. Everyone is currently claiming 'a slice of the pie' and lawyers in practice are setting out ways in which even more slices can be got from a bigger pie. For example Jacob cites Kieff and Kundstat's argument that sports innovations might be protectable. Jacob writes:

They also suggest that copyright may have a part to play in sports - regarding movements as something like choreographed movements of dance. Looking at some Olympic so-called sports one can see their point. Similarly, even if it seems difficult to imagine a new way of heading a soccer ball, it is not difficult to imagine a new way of celebrating a goal. Indeed sometimes it seems that this is the primary occupation of some players. Kieff and Kunstat finally suggest that there might be some trademark or like protection available to novel athletic moves. The important point to note about their article is that it is not absurd - legally speaking. This sort of 'protection' is coming within the range of the guns of intellectual property. And I suggest that it is doing so because people have stopped asking what intellectual property is for and whether it is doing any good. [8]

Certainly, Boyle's text comes as a welcome addition to the literature asking 'what intellectual property is for' by providing an analysis which does appear to offer insight into just why Jacob believes that such forms of athletic protection may be both legally acceptable yet also unwanted.

[1] See M.E. Katsh, The Electronic Media and the Transformation of Law, Oxford University Press, 1989 and also commentary upon this in P.Leith "What future for the Electronic Legal Text?", in International Yearbook of Law Computers and Technology, Vol. 8, 1994.

[2] COM(95)382 Summary.

[3] R. Jacob "Industrial Property - Industry's Enemy?", Stephen Stewart Memorial Lecture, November 1996.

[4] [1996] 5 EIPR 253

[5] Intellectual Property Institute Newsletter, Issue 2, 1996, London.

[6] M Rose, Authors and Owners: the invention of copyright, 1993, Harvard University Press, Cambridge, Mass.

[7] See, for example, Walter J Ong SJ, Interfaces of the Word: studies in the evolution of consciousness and culture, Cornell University Press, Cambridge, Mass.

[8] R. Jacob "Industrial Property - Industry's Enemy?", Stephen Stewart Memorial Lecture, November 1996.

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