Neoliberalism, Property and the Public Domain

Neoliberalism, Property and the Public Domain
Andrew Wender
for The Forum on Privatization and the Public Domain, 2006

Part One: Must Our Notions of the Public Domain Be Founded on Proprietary Concepts and Discourse?

If the concept of the public domain is to be most effectively deployed within Canadian life now and in the future, those who wish to invoke it should plainly recognize that, in a pivotal sense, the raison d’etre of the liberal capitalist paradigm and its integral institutions is little other than privatization.

Part 2: Intellectual Property Law as a Prime Agent of Privatization, and Challenge for the Public Domain

As we have noted, intellectual property jurisprudence represents a paramount institutional challenge to be grappled with by those who wish to strengthen the public domain against encroaching privatization. Encompassing, at its heart, the property rights surrounding trademarks, copyrights, patents, and trade secrets, intellectual property law is fused together, at the level of its Renaissance– and early modern–era genealogical foundations, with “the early stages of capitalism.” As if by a metaphysical sleight–of–hand, this area of law effectively reduces, to the corporeal form of property and commodities, multiple manifestations of an essentially intangible entity, knowledge. In the process, intellectual property doctrine acts as a prime, institutional agent for “protect[ing] the legitimacy and intellectual suasion of the liberal world view”. It achieves this by converting the nebulous phenomena of knowledge and creativity into concrete, economic existents, and, therefore, by “treat[ing]…knowledge as atomistic bits of information to be made useful and profitable”.