Commodification of intangibles in post-IP capitalism: rethinking the counter-hegemonic discourse

Intellectual property (IP) is the legal mechanism that transforms intangible instances into tradeable commodities. While creating the conditions for extraction of value and capital accumulation across all domains of economic and social life, IP law defines at the same time the boundaries of commodification by determining the scope of the public domain. Within this traditional framework, opponents of neo-liberal market expansionism have championed the role of IP doctrines and principles such as fair use, exceptions and limitations. However, new informational capitalism relies primarily on non-IP forms of appropriation and de facto control. To a large extent, commodification of intangibles and capital accumulation is no longer distressed by – and even benefits from – traditional public-domain-enhancing IP doctrines. This challenges traditional IP narratives and calls for a new foundation for a truly counter-hegemonic discourse in IP law.