The Logic of Innovation

Intellectual Property, and What the User Found There

Johanna Gibson

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317025207
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho de la propiedad intelectual

The Logic of Innovation examines not merely the supposed problem of the efficacy and relevance of intellectual property, and the nature of innovation and creativity in a digital environment, but also the very circumstances of that inquiry itself. Social life has itself become a sphere of production, but how might that be understood within the cultural and structural transformation of creativity, innovation and property? Through a highly original interlocutory and therapeutic approach to the issues in play, the author addresses the concepts of innovation and the digital by means of an investigation through literature and the imagination of new scenarios for language, business and legal reform. The book undertakes a complex inquiry into innovation and property through the wonder of Alice's journeys in Wonderland and through the Looking-glass. The author presents a new theory of familiar production to account for the kinship that has emerged in both informal and commercial modes of innovation, and foregrounds the value of use as crucial to the articulation of intellectual property within contemporary models of production and commercialization in the digital.

WONDERPART I
Of Properties

Chapter 1
Cause

Down the Rabbit-Hole

Alice was beginning to get very tired of sitting by her sister on the bank, and of having nothing to do: once or twice she had peeped into the book her sister was reading, but it had no pictures or conversations in it, “and what is the use of a book,” thought Alice, “without pictures or conversations?”¹

A book without pictures or conversations is a book without use, a useless book. These ‘conversations’ are integral to the methodology of inward speech and interlocutories¹ that informs not only philosophical method, but also a more conventional narrative ‘cure’ of the current tensions (political, social, cultural, ideological, digital) within the intellectual property system. In the present inquiry, the interlocutory with Carroll structures the literary reimagining of the intellectual property debate. The paradox of inward speech is immediate when Alice hears the rabbit’s own voice, speaking to itself: ‘nor did Alice think it so very much out of the way to hear the Rabbit say to itself, “Oh dear! Oh dear! I shall be too late!”’³

Cause and Effect

“Oh dear! Oh dear! I shall be too late!”⁴

From the very beginning, setting out on the present journey there are the elements of chance and time that will inform the discussion throughout. Bataille has noted that the origin of the word chance in French is the same for deadline (échéance):⁵ I shall be too late. There is thus immediately an entanglement of the unpredictability of chance, on the one hand, and notions of causality, measurability and accountability on the other.⁶

The conventional narrative of intellectual property industry and policy⁷ (and indeed, the narrative ordinarily applied to innovation) is linear, causal, chronological – it is curiosity in pursuit, solutions in search of a problem. Causality presupposes an end, a finishing point, a plan: ‘Now, in order to act, we begin by proposing an end; we make a plan, then we go on to the detail of the mechanism which will bring it to pass.’⁸ Intellectual property institutionalizes this narrative of progress, in concert with the overarching economic organization of innovation: ‘Chronological time is thus altogether structured by the logic of the functional relations between economic structures.’⁹ The logic of the relations between the conventional modes of production, commercialization and exploitation is thus chronological: ‘What is produced is then sold and the income from this is shared out. But the circulation, exchange and distribution of this income presuppose this production of what is to circulate and to be exchanged and shared. Logical relations are therefore at the same time chronological ones, in so far as the logical moments correspond to the different moments of time in the economic process.’¹⁰

As introduced earlier,¹¹ the obligation of ‘use’ incorporates these very same notions of purposeful depletion and wear when applying resources. Such depletion not only contributes to regulation of access (and artificial scarcity constructed by the rules of intellectual property) but also addresses economic or market concerns of a ‘lack’ (that is, a necessity, a desire in the user-consumer). Use and consumption is expenditure. In conventional economic models, the lavish expenditure of antiproduction concentrates resources in the sovereign: ‘his sovereignty in the living world identifies him with this movement; it destines him, in a privileged way, to that glorious operation, to useless consumption.’¹²

However, what of the virulent sharing and consumption that might fuel familiar production? The question, and one to which the discussion will return in later chapters, is whether it is possible through use to reconcile the antiproduction of capital with the expenditure of sharing: ‘It is necessary at this point to note a dual origin of moral judgments. In former times value was given to unproductive glory, whereas in our day it is measured in terms of production: Precedence is given to energy acquisition over energy expenditure. Glory itself is justified by the consequences of a glorious deed in the sphere of utility.’¹³ Consumption is to be recuperated for production.¹⁴ This is indeed social power, as distinct from prestige and rank: ‘Prestige, glory and rank should not be confused with power.’¹⁵ The consumption of use, of familiar production, is therefore also glorious not in the sense of possession, but in the sense of energy, creativity and becoming: ‘a movement of senseless frenzy, of measureless expenditure of energy, which the fervor of combat presupposes’.¹⁶

In addition to the relationship of use to waste, and property to preservation, the populist notion of intellectual property and its relation to innovation as causal is consequently ‘pharmacopeiac’ – that is, intellectual property operates as a kind of naming register of recognition and comparison,¹⁷ an archive, a ‘book’, a depository, and a recipe for cultural progress. This may be formal, in terms of requirements in order to access rights (patent application and grant; trade mark registration; design registration in the case of registered design rights) or informal, in terms of the cultural ‘accreditation’ attributable to protection (such as through copyright or unregistered design right). This intellectual ‘catalogue’ spans the walls of the ‘rabbit-hole’, but the shelves are always already empty, their contents apparently obsolete as the intellectual journey progresses:

Either the well was very deep, or she fell very slowly, for she had plenty of time as she went down to look about her, and to wonder what was going to happen next. First, she tried to look down and make out what she was coming to, but it was too dark to see anything; then she looked at the sides of the well, and noticed that they were filled with cupboards and book-shelves: here and there she saw maps and pictures hung upon pegs. She took down a jar from one of the shelves as she passed; it was labelled “ORANGE MARMALADE,” but to her great disappointment it was empty: she did not like to drop the jar for fear of killing somebody, so managed to put it into one of the cupboards as she fell past it.¹⁸

A conventional and literal narrative of innovation relies upon such an obsolescence of answers, so much so that the shelves of past innovation are ‘empty’, ‘used up’, as it were, by the market of innovation.¹⁹ This is the ‘debt’ of innovation.²⁰ Nevertheless, the relics remain, despite being empty of relevance to technological progress; traditional progressions of innovation are not simply directed towards a product, but are necessarily subjected to a narrative of obsolescence and replacement, of waste and antiproduction.

… when suddenly, thump! thump! down she came upon a heap of dry leaves, and the fall was over.²¹

The notion of getting to the root of a problem, to the bottom of things, is not merely colloquial: ‘For there seemed to pertain to logic a peculiar depth – a universal significance. Logic lay, it seemed, at the bottom of all the sciences. – For logical investigation explores the nature of all things. It seeks to see to the bottom of things and is not meant to concern itself whether what actually happens is this or that.’²² In this linear conceptualization of the time of innovation, getting to the ‘bottom’ of a problem, of a question, of the well, is not about acquiring new knowledge; rather, it is about understanding what is already there: ‘it is, rather, of the essence of our investigation that we do not seek to learn anything new by it. We want to understand something that is already in plain view. For this is what we seem in some sense not to understand.’²³ In other words, there is a presumption that the tools of assessment will inevitably provide the answer of ‘what is already there’, a heap of dry leaves.

The Probability of Estimates, the Deliberation of Guessing

Undoubtedly quality is worth more than quantity,

But one can discuss quality forever;

Quantity, however, is unquestionable.²⁴

This purposeful search for answers reveals only the meaninglessness of the questions. This is the fallacy of depth, of looking inwardly. And arguably, this is the fallacy of constructing innovation as a calculable problem. Wittgenstein illustrates this with the example of the right hand giving the left hand money: ‘My right hand can write a deed of gift and my left hand a receipt. – But the further practical consequences would not be those of a gift. When the left hand has taken the money from the right, etc., we shall ask: “Well, and what of it?”’²⁵ In other words, understanding comes not from some pretence of depth, but rather from looking at the surface: ‘And the same could be asked if a person had given himself a private definition of a word; I mean, if he has said the word to himself and at the same time has directed his attention to a sensation.’²⁶

This preoccupation with depth betrays a peculiarly Utopian presumption concerning meaning, innovation and, indeed, concerning the law itself and its explanation and modelling function, as well as its submission itself to models and calculation (mathematical, logical, economic). This conceptual and rhetorical strategy infuses not only the discourse of legal reform, but also the discourse of technological ‘advancement’ (always advancement, never simply change). The prerequisite of depth as the source of knowledge and freedom is thus the presumption of a linear narrative of meaning, progress and innovation; in other words, one must advance in order to appreciate depth. This is the fallacy of ‘inner language’²⁷ and the bias towards ‘depth’: ‘How should we counter someone who told us that with him understanding was an inner process? – How should we counter him if he said that with him knowing how to play chess was an inner process?’²⁸ In other words, this is the paradox of representation. Representation is always already constrained within language: ‘a person who had never heard of chess’ need not be troubled, as it were, with the ‘secondary meanings attaching to queen and rook. There would be many crimes and errors which it would be beyond his power to commit, simply because they were nameless and therefore unimaginable.’²⁹

Therefore, representation, and indeed any modelling, is relative,...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Works of Lewis Carroll
• Preamble
• USE
• WONDER
• RE USE
• After All
• Bibliography
• Index