Emancipating Intellectual Property from Proprietarianism: Drahos, Foucault, and a Quasi-Genealogy of IP

Abstract

This paper argues that Peter Drahos undertakes a partial Foucauldian genealogy by emancipating intellectual property (IP) from proprietarianism. He demonstrates the dominance of proprietarianism in IP by drawing sample practices from trademark, copyright, and patent laws, and then seeks to displace the proprietarian dominance with instrumentalism, which reconstitutes IP as a "liberty-intruding privilege." Ironically, despite doing a genealogy, Drahos does not eradicate sovereignty altogether as Michel Foucault insists, but instead determines IP as a "sovereignty mechanism" that has a "sovereignty effect." After explaining what Foucauldian genealogy is, the paper will explain how Drahos undertakes a genealogy of IP, while highlighting the limitations of Drahos' analysis from a Foucauldian perspective.

Introduction: Beyond Foucault: Excursions in Political Genealogy

“…One, a certain understanding of political genealogy as a method and what it can facilitate and, second, a commitment to the application of that method to real issues and problems beyond a critique of Foucault, to the extent that the two can be separated. To wit, with regard to method, Wendyl Luna says, in his essay here on intellectual property, "Foucault's genealogy provides a useful and still relevant approach to analyzing rights and power, especially in the specific context of [intellectual property]" (Luna 2018). Lee echoes this sentiment: "Political genealogy after Foucault can open up a conceptual space that will provide a more nuanced understanding of subjectivity in modern war."…”