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  • Terms of Use: Negotiating the Jungle of the Intellectual Commons
  • Philip Doty
Terms of Use: Negotiating the Jungle of the Intellectual Commons. By Eva Hemmungs Wirtén. Toronto: University of Toronto Press, 2008. ix, 223 pp. $27.95. ISBN 978-0-8020-9378-3.

This book is a well-written and welcome addition to the growing literature about copyright and cultural expression. Author Eva Hemmungs Wirtén is a professor at Uppsala University, Sweden, in the Department of Archival Science, Library and Information Science, and the book will appeal to a wide variety of audiences. Of special interest to readers of this journal are Wirtén's international perspective, her emphasis on the value of history for understanding social categories such as cultural expression and so-called intellectual property, and her wide-ranging view of what constitutes knowledge. Administrators and practitioners in institutions of memory such as libraries, archives, and museums will find suggestions for their professional practice based in historical and theoretically informed arguments; cultural scholars and theorists will find arguments of value to their work, especially because of her deep and comparative understanding of copyright and other "intellectual property" regimes; and copyright and information policy scholars will find Terms of Use useful because of Wirtén's expertise in cultural theory, comparative politics, and cultural history.

Using the increasingly valuable trope of the intellectual commons, the author might be called a copyright minimalist as against copyright maximalists, who assert that the purpose of copyright and other regimes that protect cultural expression (patents and trademarks) is to maximize the economic value of the expression to the rights holder, whether the rights holder be the creator or some person or organization to which the creator has ceded rights.1 Maximalists assert the identification of cultural creation as property, with the assumption that such property deserves protection from theft and misappropriation in the same way we prevent others from taking our houses, cars, and wallets—forms of "natural" property. Thus maximalists tend to emphasize the use of the term "intellectual property," a term of recent vintage, in discussing such legal regimes. Minimalists, on the other hand, assert that rights in cultural expression spring from public grants of protection, not "natural" rights. While minimalists recognize creators' and other rights holders' interests, especially shared interests in creative expression, minimalists hold them as secondary to the public interest in the constant creation and sharing of cultural expression.

In concert with scholars such as Jessica Litman, Lawrence Lessig, and Pamela Samuelson, Wirtén asserts the shared interest in copyright and other forms of protection for cultural expression; that is, such protections are granted primarily to encourage the creation and sharing of culture, not to protect the economic interests of rights holders. It is this position that leads her, cleverly, to adopt the [End Page 380] image of the jungle as a metaphor for the intellectual commons, tying the image to the story of European expansion.

Amply illustrating her argument with major themes in European colonialist history, Wirtén shows that European culture has regarded the jungle as a waste, a place that is full of "natural resources" ripe for exploitation but allowed to lie fallow by the jungle's savage inhabitants. The book is characterized by many specific and clear examples of the colonial characterization of the jungle in this negative light. The book's three central chapters (2-4) address, respectively, plants as part of the global and scientific commons and as invaluable pharmaceuticals; animals as they evolved from exhibitions in zoos and museums to digital beings; and literary expression as an expressive form of the trope of the jungle (including Wirtén's use of documentalist Suzanne Briet's now famous discussion of how an antelope becomes a document by its inclusion in a zoo [146-47]).2 The first chapter is a useful historical exploration of the commons as a cultural and legal category in the Western tradition, from its early roots to the concept of the digital commons; the introduction and conclusions frame the argument of the three central chapters.

Wirtén uses conflicts over what the concept of the commons meant over centuries of cultural, economic, and political...


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