Property as participation
For some time now scholars have reflected on the question whether trademarks are a species of property. The question is conceptually intriguing and it also has significant practical implications (consider the example of recent and forthcoming litigation over tobacco plain packaging in Australia and the European Union). But what if one were to pose the question the other way around? What might an inquiry into the social life of trademarks tell us about the sense of property in the contemporary world? Drawing on sociological and anthropological accounts of the Internet as a medium of participation, this paper develops an analysis of the ways in which brands are brought to life in online platforms and digitally-mediated communication. What emerges is a sense of brands as media which translate the traditional ingredients of property into a novel technique for the construction of selves. There are two broad hypotheses. First, sociological reflection on the ecology of brands might prompt a reconsideration of the function of trademarks as modes of communication. Trademarks and brands function more as resources for self-fashioning than as means of conveying information from producers to consumers. The second (somewhat more speculative) conclusion is that these processes of self-fashioning are the key to understanding how property works in many spheres of contemporary social life.
Alain Pottage is Professor of Law at the London School of Economics. He teaches courses in intellectual property, concepts of property, and the anthropology of law.