Shamans, Software, and Spleens - A Book Review

As we are moving into the "information society" more and more questions concerning intellectual property rights arise. How is information commodified and who owns it? How do intellectual property rights function as an incentive for research, and thus the creation of more information? Can genetic information be "owned" by someone other than the person from whom the genes or cells came from? In his book Shamans, Software, and Spleens, John Boyle looks at these issues and their complexity in the free market, and the public and private spheres. He uses the framework of the "romantic author" as a unique individual who creates a transformative work of art from the inner soul as the ideology that drives intellectual property rights. His aim is to create an analysis of the social construction of reality. (x) And he does this all "without any references to Madonna." (xvi) In this essay I will provide a brief summary of Boyle's thesis followed by an analysis of his argument. Finally, I will discuss what this book has to offer to the field of communication studies.

Boyle's central thesis is that the law concerning intellectual property rights is such that it revolves around the notion of the "romantic author." It is this notion which creates a puzzle of where the division between expression and idea lies within the law. The idea of the romantic author provides a conceptual basis upon which justifications are made in cases of property rights; a justification that allows for such things as corporations to take well known folkloric remedies from "third world" peoples and, with slight alterations, claim the intellectual property right to them with no economic benefits to the peoples from which they came. He describes what this idea of the romantic author is, where it came from, and provides case studies of cases in which it functions and what exactly it functions as.

Boyle cites the idea of the romantic author as emerging in the late eighteenth century debates over copyright in Germany. "Encouraged by an enormous reading public, several apocryphal tales of writers who were household names, yet still living in poverty, and a new, more romantic vision of authorship, writers began to demand greater economic returns for their labors."(52) Hence, the copyright emerged, but not without debate. An author had to be special in a specific kind of way. The romantic author was the transformation of genre, the revision of form. "It is the originality of the author, the novelty which he or she adds to the raw materials provided by culture and the common pool which "justifies" the property right and at the same time offers a strategy for resolving the basic conceptual problem…what concept of property would allow the author to retain some property rights in the work but not others?" (54) Boyle best sums up this idea with the words of one of the participants in the German debates, Fichte: "Each writer must give his own thoughts a certain form, and he can give then no other form than his own because he has no other. But neither can he be willing to hand over this form in making his thoughts public, for no one can appropriate his thoughts without thereby altering their form. The latter thus remains forever his exclusive property." (55)

Boyle uses case studies of intellectual property right law ranging from software, to blackmail, to insider trading, to spleens to illustrate how the idea of the romantic author comes into play in each of these discourses. In each of his examples his final conclusion is that it is the rhetoric of this romantic author which provides justifications, in the eyes of the law, of intellectual property rights. Most interesting, in my humble opinion, is the case study of a court's decision not to allow a man the rights to genetic material from his own, although removed, spleen. The case of Moore vs. The Regents of the University of California is about that spleen. In 1976 John Moore started treatment for hairy-cell leukemia. Unbeknownst to him, his doctors realized some potential commercial value of his cells and performed tests without telling him of their commercial interest. Eventually, they removed his spleen. Soon after, his doctors patented a cell line established from Moore's t-lymphocytes (found in his removed spleen). A 1990 estimated value of this cell line was three billion dollars. The court held he did not own the cells from which the information had been extracted. A closer examination of the rhetoric of this decision revealed the court did not feel Moore owned his spleen because it had been removed. Second, the court decided the cells were not property anyway according to California's genetic material statute. Finally, the court concluded that Moore could not be given the property right to his genetic material because to do so might hinder research. Boyle argues "reading this case one gets the sense that the court thought that Moore did not exhibit that mixture of arcane labor and dazzling originality that we associate with the romantic author." (106) However, the scientists who borrowed his spleen did display these characteristics.

For Boyle examples like Moore's spleen (I mean the University of California's spleen) present numerous problems. One is that the division between the public and private spheres is getting hazy. We need property rights as an incentive for research, yet that sometimes leads to what we would consider "private" (such as our own genetic make-up) to be commodified and then sold into the free market. Another fear is, as is currently the case, that companies will invade "third world" countries and claim to "own" what remedies the indigenous peoples have already discovered without experiencing any benefits themselves. Another is with the issue of transgenic slavery. Boyle argues that organisms created form the mixing of genetic material, such as clones, may be owned as an "original" creation.

Although he does not disagree with the idea of property rights, he does feel there are problems with how copyrights are awarded to those who fulfill the idea romantic author in present law and in court. For him, there needs to be more concern for the public domain. Because copyrights are constructed around the idea of authorship, only certain kinds of contributions are recognized.(168) He suggests a reformation of current intellectual copyright laws. One of these suggestions is that copyright should subsist only for twenty years. He also suggests that "software should be covered not by patent law or by copyright, but by a sui generis system." (172) In addition, he thinks having a property rights system which is subject to periodic auditing to determine if the intellectual property right is providing too high or too low an incentive to future production and research, would be of great value. (172)

Although I found Shamans, Software, and Spleens to offer an interesting and thought-provoking look at the construction of the law of information, this is not a particularly useful book in communication studies. Boyle seems to write more for lawyers and economists and uses a lot of jargon (such as sui generis from the last paragraph) without explaining what it means. This suggests to me he already assumes his audience knows what his jargon means.

Another problem I found closely related to the one above was his lack of explanation of what copyright law actually is. He did touch upon certain words and phrases but never actually did a historical rhetorical analysis. It is as if he already assumes the reader knows what the copyright law says.

Something else Boyle does in the preface to his book is explain that postmodern theory does not offer enough writing of the impact of the "information society." Yet he concedes (especially in the appendix) that the knowledge/power nexus offered by postmodernists provides a promising starting place for the analysis of the information age (xvi). This is interesting to me because Boyle's case studies and examples often look at that relationship and are reminiscent of Foucault (which he admits in the appendix on pages 202 and 230) Also, I do believe postmodernists offer answers to the question of "what is an author?" that are relevant to issues of technology and technological ideology. For example, even this semester we read Marx's The Fragment on the Machine which is about technology. It is interesting to me that Boyle chose only to cite Marx twice in this book. The first was from his essay "On the Jewish Question" which talks about the division between the private and public spheres. The second was in reference to Marx's thesis concerning labor and the surplus of goods. Walter Benjamin, Marcuse, and Heidegger all provide a critique of technology, art, ideological structures, and the place of the human creator or author. I think he was wrong to simply write off postmodernism as not being something he was going to address in his argument.

Boyle's analysis of the rhetoric of intellectual property law may provide some use in cultural studies as he does go into great detail about imperialistic ownership of indigenous technologies. Since his background is in law, he provides helpful and relevant case studies of these kinds of occurrences.

Overall, I found this book to be very interesting and a good resource for research into intellectual property rights, although lawyers and economists might understand it more than communication studies students!