Towards a Critical IP Theory: Copyright, Consecration, and Control

"All animals are equal, but some animals are more equal than others."- George Orwell, Animal FarmI. INTRODUCTIONIntellectual-property jurisprudence increasingly informs the way in which social order is maintained in the twenty-first century. By regulating cultural 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 vesting, enforcement, and adjudication of rights pertaining to creative works in a way that best advances the constitutionally mandated purpose of the copyright regime: progress in the arts.1 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. This Article identifies and builds on an emerging literature2 - one that it refers to as "critical intellectualproperty" scholarship - to introduce a 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.As John Fiske writes, "Popular culture always is part of power relations; it always bears traces of constant struggle between domination and subordination, between power and various forms of resistance to it or evasions of it . . . ."3 Thus, it is not surprising that intellectual-property laws that control access to and use of popular culture are a function of power relations. In the early 1970s, sociologist Pierre Bourdieu introduced the concept of cultural reproduction to explain the processes through which the dominant class retained its power.4 Drawing on the example of schooling in modern society, he argued that educational institutions function largely to preserve hegemonic interests by perpetuating the reproduction of the cultural and social values of the dominant class.5Bourdieu's work on cultural reproduction has inspired waves of scholarship in the social sciences,6 but it has not generated as much interest in the field of intellectual property. Yet the notion of cultural reproduction is instrumental to understanding the consequences of intellectual -property laws on knowledge-power systems. Bourdieu's work and the scholarship it has inspired suggest that the inviolate recitation of the cultural production of dominant social forces is a profound vehicle for the inculcation of a set of values and symbols that consolidate existing power structures.7 If that is the case, the act of imperfect reproduction, or of customization, of cultural production can translate into an act of subversion or reproduction of the existing social order in a particular form. These acts of differentiation and similitude, or the acts of imperfect reproduction and customization, are carefully regulated by intellectual-property laws.8 And the selective protection granted to cultural production under the guise of copyright reveals the role of intellectual-property law in molding identities, enforcing dominant values, and controlling expressive rights. In short, user and creator rights are determined by intellectual-property laws that can help both maintain and perpetuate existing social structures.9 Copyright's procedural and substantive rules therefore serve as a key vehicle for the discursive exertion of knowledge-power systems on individuals.Part II of this Article examines the link between intellectualproperty rights and knowledge-power systems. Specifically, it frames the theoretical underpinnings of this study of copyright law in cultural studies. A growing body of scholarship has begun to analyze the relationship between trademark, copyright, and patent doctrines and wider power struggles by assessing the myriad ways in which our intellectual-property regime reflects and even accentuates traditional race-, gender-, orientation-, and class-based divides. …