Interview with Law Professor Eduardo M. Peñalver, on Art, Law and Property

You hit on two issues that I wanted to touch on: property as a form of social relations, and intellectual property. Perhaps we can tease them out throughout this conversation. Your first point leads me to Joseph Singer’s view of property. If I understand Singer correctly, his view is one that departs from traditional notions of property by declaring that property is not simply individual liberty (the right to do what one wants with one’s property) and little intervention by government over one’s control of one’s property. I believe he defines property as an entity formed by entitlements and obligations. This seems like a radical departure from conventional definitions, primarily because it seems to immediately invoke a socially conscious mode of ownership, which to me seems counter-intuitive to a capitalist system and of course maximum profitability. Is Singer’s theory viable and thus directly applicable to contemporary, and may I add, “real” material relations? The connection to the current hot issues surrounding copyrights seems apropos here, especially since the concept of “fair use” seems to be narrowing, if not altogether dying. My immediate concern is that if property has shifted from land to intellectual products, the possibility of a “taking” by non-governmental forces (let’s say a type of resistant force) is diminished, if not also altogether decimated. Am I wrong?

EP:

I don’t think Singer’s view of property is so radical. Its focus on relationships among people with respect to resources shares many features with certain law and economics approaches to the subject. Though, as you say, it is inconsistent with more rigidly libertarian approaches. If anything, Singer’s theory becomes more and more relevant as we shift away from traditional notions of property based on the model of economically productive land. As to whether government takings are as much a concern in the IP context as they are in the context of land, it’s an interesting question. Virtually all of the takings cases at the Supreme Court have involved land. The one exception that comes to mind is the Ruckelshaus v. Monsanto case. Though I am no IP specialist, IP strikes me as a very fragile sort of property, in part because IP rights are so expansive and in part because they are so easily violated. On the other hand, the nonrivalrous nature of information seems to make the harm to IP owners of such violations much harder to measure and, in any event, more incremental.

SMS:

THis is really interesting, and you’ve said so much that we can go in many directions. I’d like to connect it somewhat to artistic practices and cultural production. Your point on takings in relation to land and IP in particular raises a couple of questions. One, do you think that the “fragile nature” of IP, as you call it, makes it easier for visual artists to appropriate copyrighted and trademarked material for the sake of socio/political critique? In other words, I can imagine a visual artist may “take” such material from the web or a local library, but a sculptor or architect cannot “take” land, at her will and without permission, for the sake of her project. Does this call for a more experimental and/or radical approach by artists, especially in relation to land?

Second, and related, it seems that many visual artists (let’s stay within the U.S.) have opted for two spaces of occupation: the internet or traditional museum/gallery spaces. Do you see other potential uses of real property that have been neglected by artists, cultural producers, and architects, and if so, why is this so? And is this simply the fact that in the end, law trumps art?

EP:

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