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Intellectual property for the neurocentric age: towards a neuropolitics of IP Jake Dunagan Global Foresight Lead, verynice.co, and Instructor, Strategic Foresight, MBA in Design Strategy, California College of the Arts

Debora Halbert* University of Hawaii, Manoa, USA

In this article we seek to expand the conversation about the possible new relationships and dilemmas that arise at the nexus between neuroscience, creativity, authorship and intellectual property. This article does not use traditional legal argumentation to understand the future of intellectual property, but rather deploys a scenario-based interrogation of possible future trajectories, a method derived from the discipline of futures studies. Instead, we draw upon a mix of social, legal, political, and technological trends to generate different alternative possibilities. Taken together, emerging insights from the brain sciences and the shifting dynamics of IP law point to a need for a new analytical framework – a neuropolitics of IP law. We ultimately conclude that without a fundamental transformation in how we understand intellectual property and its ownership, the mechanisms in place for expanding corporate control of IP at the expense of the individual should be of serious concern. Keywords: neuropolitics, neuroscience, copyright, futures, intellectual property, brain science, creativity Do I contradict myself? Very well then I contradict myself, (I am large, I contain multitudes.) (Walt Whitman, Song of Myself [http://www.daypoems.net/plainpoems/1900.html])

1 INTRODUCTION The legal and political impacts of emerging neuroscience research and neural technologies have begun to gain more critical attention from scholars and to be used more frequently in criminal and civil cases.1 Discussion of the impact of neuroscience on intellectual property (IP) law has been limited and has tended to be focused on * We would like to thank the conference organizers of ISHTIP for allowing us to present our paper, the discussant at ISHTIP, Robin Williams and Chris Dent, who provided extensive feedback on an earlier draft. A revised version of this paper was also presented at the Berkeley Center for Law and Technology Intellectual Property Scholars Conference, August 2014. 1. David Eagleman, ‘The Brain on Trial’ [2011] The Atlantic <http://www.theatlantic.com/ magazine/archive/2011/07/the-brain-on-trial/308520/> accessed 30 March 2015; Brent Garland, ‘Neuroscience and the Law: Brain, Mind, and the Scales of Justice’ The American Association for the Advancement of Science and the Dana Foundation (2004) <http://www.aaas.org/sites/ default/files/migrate/uploads/NeuroLawSummary.pdf>. © 2015 The Author

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understanding moral responses to copying and infringement.2 We seek to expand the conversation about the possible new relationships and dilemmas between neuroscience, creativity, authorship and IP. IP exerts a powerful influence over how people access, develop and share expressions and inventions. However, recent advances in the brain sciences call into question many of the foundational assumptions upon which intellectual property law is built, how it is practised, and how it might evolve in the future. The relatively new areas of study focused on the brain, consciousness and the concept of the mind suggest that a fundamentally different relationship can exist between the individual, law, culture and power. Better understanding how the mind works (and doesn’t work) can be used to challenge the concept of individual original authorship, and undermine the idea that creation itself emanates from the individual mind. It can also be used to establish enhanced and more totalized control over creativity, a type of control that will further encompass into the minds of the individual. To delve further into the possible relationships now being established between the human brain and technology, the linkages of the brain to digital networks pushes our knowledge concerning concepts like tangibility in copyright law or the likelihood of confusion in trademark law. The extended mind, that nexus between human and computer, the rapidly emerging world of the posthuman, and the debates over ownership and the lines between the individual and the network also influence the future of IP. Taken together, emerging insights from the brain sciences and the shifting dynamics of IP law point to a need for a new analytical framework– a neuropolitics of IP law. This article does not use traditional legal argumentation to understand the future of intellectual property, but rather deploys a scenario-based interrogation of possible future trajectories, a method derived from the discipline of futures studies.3 This future-oriented lens is critical if we are to address coming challenges. While the contours of these changes are hard to see in sharp focus, and there are no ‘future facts’, we can improve our understanding and prepare for a range of possible directions for change. Furthermore, we have not positioned our arguments here in terms of the case law of intellectual property. Instead we draw upon a mix of social, legal, political and technological trends to generate different alternative possibilities. This approach may be unusual for some readers, but it has proven its value within futures studies and related fields, and we believe it will be provocative and useful for those interested in the emerging and uncertain intersection of neuroscience and IP. The scenarios we build in this article are each derived from a shared present – including today’s latest science, technology, social, political and legal trends, and emerging issues. But out of this reservoir of shared possibility, each scenario reflects differing amplitudes and inflections of those trends, leading to distinct and diverse IP futures in a neuropolitical age. Scenaric thinking is not about finding the single most convincing future, but rather tuning one’s neurons toward alternatives in order to expand one’s perspective and identify important and often competing dynamics of a field of inquiry. It is better to be challenged by possibilities, even provocative ones, than blindsided by change when it is too late to act effectively. While this sort of alternative futures exploration is the tool, the ultimate goal is for more robust, future-oriented policy. We ultimately conclude that without a 2. Eg Oliver R Goodenough and Gregory Decker, ‘Why Do Good People Steal Intellectual Property?’ [2008] The Gruter Institute Working Papers on Law, Economics, and Evolutionary Biology. 3. Wendell Bell, Foundations of Futures Studies, Vol 1 (Transaction Publishers 1997); James A Dator, Advancing Futures: Futures Studies in Higher Education (Praeger 2002). © 2015 The Author

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fundamental transformation in how we understand intellectual property and its ownership, the mechanisms in place for expanding corporate control of IP at the expense of the individual should be of serious concern. Thus, after carefully considering a range of alternatives, we suggest our preferred future – meaning the way we feel IP ought to develop. This is a future moving towards less ownership and control over ideas and their expressions and instead emphasizing individual autonomy and sharing. Not all foresight, forewarning, or valid arguments are decisive in influencing positive change, especially with vested interests exerting their power over policy and decision-making processes. However, while not sufficient, foresight is a necessary condition for improved individual decision-making4 and good policy-making,5 and we hope this broad exploration is useful for those with a stake in this emerging area of study. Part 2 sketches out the concept of neuropolitics as it relates to creativity and innovation. We have entered what some scholars call the neurocentric age. The details of this transformation will be discussed. We seek to apply new findings from brain research in order to pose questions regarding how we have derived the legal boundaries of intellectual property that are used to control the flow of ideas in a commercial setting. While there has long been a debate over the role of the original author and the notion of the romantic genius,6 a neuropolitics of IP law allows us to think about the changing contexts, incentives and agents that intellectual property laws are structured to support. Part 3 offers a brief introduction to the concept of the extended mind. While related to brain studies, the analysis made possible by the concept of the extended mind means that we must more closely investigate the relationship between individual consciousness and the technological interfaces that we use daily, like smart phones or computers, that extend our mind beyond the brain, and even the body. Such an approach also invites us to look to the future of intellectual property laws, perhaps premised upon a different logic of the mind, and thus also to think about how we ought to go about structuring future intellectual property laws. Part 4 introduces the concept of scenarios and why they are useful tools for exploring possibilities within a policy space. We include this section because many reading this essay may not be familiar with futures methods and futures scenarios. It is a brief justification for the scenarios that follow. Part 5 offers multiple alternative scenarios for how IP within a neuropolitical frame might evolve. The goal of this section is not to suggest a single and inevitable future. Instead, it seeks to outline a series of logically coherent narratives about how IP could evolve if certain choices and trajectories are followed. We have sought not to make any specific normative claims about these futures, but instead to allow the reader to think through what might come to be. Part 6 offers our preferred future, or at least offers some policy related efforts to achieve the preferred future. Part 7 concludes our analysis. If law can evolve to better reflect the underlying human condition, then bringing brain science research into conversation with intellectual property scholars is an 4. Daniel Gilbert, Stumbling on Happiness (Vintage 2007). 5. T Könnölä et al., ‘Foresight Tackling Societal Challenges: Impacts and Implications on Policy-Making’ (2011) 43 Futures 252. 6. Martha Woodmansee, ‘The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the "Author"’ (1984) 17 Eighteenth-Century Studies 425; Martha Woodmansee, ‘On the Author Effect: Recovering Collectivity’ (1992) 10 Cardozo Arts & Entertainment Law Review 279; Martha Woodmansee and Peter Jaszi (eds), The Construction of Authorship: Textual Appropriation in Law and Literature (Duke University Press 1994). © 2015 The Author

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important step towards an intellectual property law appropriate for the neurocentric age. This article is intended primarily as a sketch of the legal challenges ahead as we come to understand more about creativity and its location in the brain, as networks further blur the boundaries between individual actors, and as our ancient pre-digital property assumptions are challenged. It is also an invitation to other scholars to focus their attention on alternative futures ahead, and to prepare for potential technological and legal changes on the horizon. 2 WHAT IS THE NEUROCENTRIC AGE? The brain sciences and their many applications have ushered in what science writer Carl Zimmer has called the neurocentric age.7 This is a time when knowledge, identity, law, culture and relationships are situated within and re-defined by a deeper understanding of the brain, the way it functions, and how it can be altered and enhanced.8 The neurocentric age is a way to describe the profound impacts the brain sciences are having on how we think about ourselves, our society, and the institutions we’ve created to manage civilization. Neuroscience locates most aspects of human subjectivity and sociability in neurobiology.9 Through the use of brain scanning technologies such as the fMRI (functional magnetic resonance imaging), which measures and highlights the sections of the brain engaged in the activity under study, scientists seek to explain human cognition and behaviour. While we ought to consider the data from such experiments critically, and it should be of concern that human behaviour is becoming essentialized as merely an expression of the brain, brain-based science is now (whether justified or not) being used to make important claims about human cognition and social behaviour.10 In fact, popular and scientific literature is replete with claims about the explanatory power of brain imaging for understanding human behaviour.11 Instead of seeing a person set within a complex array of social relations, what is studied in cognitive studies is the electrical and chemical activity of the human brain.12 In the not too distant future, it is likely that neurochemical profiling will be possible, providing us with the ability to better predict motivations and actions based upon an assessment of a person’s brain.13 Brain-based lie detectors are already in operation and the results have been admitted into American courts.14 Reducing human agency to brain function offers much to be debated from a legal and policy perspective. Brain imaging has determined what specific parts of the brain are involved when problem solving is done with insight, compared to when problems are solved using 7. Carl Zimmer, Soul Made Flesh: The Discovery of the Brain – and How it Changed the World (Free Press 2004). 8. Jake Dunagan, ‘Politics for the Neurocentric Age’ (2010) 15 Journal of Futures Studies 51. 9. Ibid 54–5; Nikolas Rose, ‘The Human Sciences in a Biological Age’ (2012) 3 ICS Occasional Paper Se 1, 10. 10. Rose (n 9) 11. 11. Deena Skolnick Weisberg and others, ‘The Seductive Allure of Neuroscience Explanations’ (2008) 20 Journal of Cognitive Neuroscience 470. 12. Steven Johnson, Mind Wide Open: Your Brain and the Neuroscience of Everyday Life (Scribner 2004) 4–5. 13. Ibid 155. 14. Martha J Farah et al., ‘Functional MRI-Based Lie Detection: Scientific and Societal Challenges’ (2014) 15 Nature Reviews Neuroscience 123. © 2015 The Author

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other strategies such as mathematical modelling.15 The implications for how we might educate with an understanding of different levels of brain cognition amongst children are already being discussed.16 There is also a growing literature on the legal applications of brain science for better understanding criminality and violence.17 Where there are gaps in social scientific explanations, many are now going straight to the brain itself to explain human behaviour. From the point of view of the neuroscientist, brain chemistry is an essential aspect in understanding human cognition and behaviour. To that end, as scientists develop more sophisticated methods of researching the brain, it is human genetic nature, not the environment that can be most easily altered to produce different behavioural results.18 As neuroscientists Haier and Jung explain, In the 21st century, we are beginning to have innovative techniques to alter the neurobiology of the brain; these include new drugs and targeted delivery into specific brain areas, electrical stimulation of deep brain structures with implanted electrodes, genetic engineering, and even surgical interventions including tissue transplantation in the brain.19

We can now understand how to alter brain chemistry to address human behavioural issues. It is important to point out that despite the decades of research that have already been done and despite increased funding for future research, the central feature of the neurocentric age is not necessarily the truth of the experimental results, but rather the way the existence of these explanatory models is now shaping public policy and our understanding of what it means to be human. For example, neuroscientists are still unclear on what is the role of the unconscious in decision-making. Some scholars argue that it is possible to demonstrate that human consciousness is not an a priori position but instead intervenes as a method of interpreting the massive data flows brought to the brain each second.20 Such a perspective has radical implications for everything from free will to everyday decision-making. However, a recent survey of the last twenty years of scholarship on the role of the conscious versus unconscious mind suggests that the literature cannot conclusively prove that the unconscious is relevant to decision-making at all. 21 15. Edward M Bowden and others, ‘New Approaches to Demystifying Insight’ (2005) 9 TRENDS in Cognitive Sciences 322. 16. Richard J Haier and Rex E Jung, ‘Brain Imaging Studies of Intelligence and Creativity: What Is the Picture for Education?’ (2008) 30 Roeper Review 171. 17. Peter Becker, ‘The Coming of a Neurocentric Age? Neurosciences and the New Biology of Violence: A Historian’s Comment’ (2010) X Medicina & Storia 101; Nita A Farahany, ‘A Neurological Foundation for Freedom’ (2011) 4 Stanford Technology Law Review 1; Nita A Farahany, ‘Incriminating Thoughts’ (2012) 64 Stanford Law Review 351. 18. Becker cites research on anti-social behaviour and the combination of genetic predispositions and environmental factors that contribute to such behaviour. The larger question can then be asked – is it possible to tweak the genetic aspects contributing to such behaviour? Becker (n17) 114. 19. Haier and Jung (n 16) 172. 20. Andy Clark and David J Chalmers, ‘The Extended Mind’ (1998) 58 Analysis 10; David Eagleman, Incognito: The Secret Lives of the Brain (Canongate 2012); Johnson (n 12); Tor Nørretranders, The User Illusion: Cutting Consciousness Down to Size (Viking Penguin 1998) 288. 21. Ben R Newell and David R Shanks, ‘Unconscious Influences on Decision Making: A Critical Review’ (2014) 37 Behavioral and Brain Sciences 1. © 2015 The Author

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While a systematic survey of the methodologies of the studies involved can help critique and undermine the individual conclusions of each study, the larger public narrative that has emerged is one where the brain can explain everything. Neuroscientific studies, whether the science is complete or not, is already used to justify new policy. Such a shift suggests we have already pivoted to a neurocentric explanatory model for human behaviour. The stakes are high, and the power/knowledge nexus forming around neuroscience is poised to exert significant influence on almost all aspects of modern life. Because this power potentially extends directly into our consciousness and thought processes, its reach is deeper and more personal than other technological ‘transformations’ of the past, such as industrial mechanization, the automobile, or networked computers. It remains to be seen whether the neurocentric age will be one that simply reconsolidates, or even strengthens, status quo power relations – instantiating them on our brains and extended minds. Or, alternately, might the neurocentric age signal a break with previous human relations, economics and civilizational institutions? These dynamics will not play out simply by the introduction of technologies, and their seemingly pre-determined futures. It will be a complex mix of technological, political, economic and situational forces. It isn’t simply a neurocentric model that is relevant, but a neuropolitical model that is required. In other words, neuroscience tends to report results as evidence of how things are. How we might use this knowledge is, however, a political choice. Thus, thinking about neuropolitics becomes essential – given how significant an impact this mode of research into human cognition will become. The role of neuropolitics is ‘to re-conceptualize these functions in terms of their political effects and to explore the worlds that emerge out of brain-body-culture interactions’.22 In this light, a neuropolitics (or a neurosociology) must bring a broader understanding of historical complexity to the use of brain science. Brain science can both provide new insights into human cognition and behaviour but also must be contextualized critically. For example, Rose argues that the scholarship on the adolescent brain, which claims the lack of cognitive development should offset legal responsibility, must be critically examined. After all, the concept of adolescence itself is relatively modern and any discussion of the adolescent brain needs to be aware of the nature of the social construct of adolescence.23 Thus, a neuropolitics should help us re-examine and think through the complexity of brain research for politics, law and policy. It should help clarify that there are political and legal ramifications for the study and modulation of the brain. The neurocentric age brings with it the opportunity, and the responsibility, to examine some of our widespread assumptions about the autonomy of the individual. But while the neurocentric age implies a magnetic force of attention around grey matter, a broader view of mind is also critical to understanding the shifts ahead in all their complexity. The neurocentric is both centripetal and centrifugal. While more resources are focusing in on the brain, the mind is also further extending into the world. In many ways, the research on the brain remains tied to the assumption of the individual brain housed within the body of an individual person. The extended mind concept frees the brain from those boundaries and thus, while the turn to the neurocentric age provides insight into how individual brains function that will be relevant to public policy, the extended mind gives us a sense of the future of the brain as it further integrates into the digital world made possible by modern technology. 22. Dunagan (n 8) 56. 23. Rose (n 9) 14. © 2015 The Author

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As Dunagan puts it: part of being human is the ability to ‘offload’ and recombine cognitive processes with technology and the environment – allowing the mind to have access to a much greater repository of personal and civilizational memory, and to take-on more complex puzzles and abstractions than would be possible if everything was kept in the head.24

As one recent brain expert has suggested, as we have become more socialized and domesticated, our brains have become smaller – in other words as we extend our individual minds beyond ourselves, we rely more heavily upon a network of people and technologies.25 Thus, we need to more clearly understand what the concept of the extended mind means in the context of an emerging neuropolitics. 3 DEVELOPING THE CONCEPT OF THE EXTENDED MIND Understanding the individual as autonomous, separate and distinctly unique is a mainstay of modernist political and social philosophy and governance design, 26 yet there have been compelling interventions to challenge the central location and boundedness of the individual from a variety of fields, approaches and geographies. Ground-breaking work by feminists challenged the notion of the autonomous individual, looking more closely at situational and contingent manifestations of boundaries and autonomy.27 In Confucian, Taoist and Buddhist philosophy, the individual is a slippery and often counter-productive form that hampers more efficacious relations between beings.28 The philosophical efforts of Foucault to situate the self within regimes of power, social structures and biopolitics have opened up new possibilities for understanding identity.29 Communitarian anarchists have long argued for concepts such as mutual aid, collaborative democracy and the need to situate the individual subject within the larger social whole.30 The field of cybernetics also introduces an avenue to bypass the dualism of mind/human and world/object, often seeing the individual in terms of information and flow, as opposed to the ‘meat’ (body) substrate of individuality. 31 As Andrew Pickering notes, cybernetics is a non-dualist approach to the world where the divide between humans and the outside world is 24. Dunagan (n 8) 57. 25. Bruce Hood, The Domesticated Brain: A Pelican Introduction (Penguin Books Ltd 2014). 26. Pickering refers to this approach as the ‘modernist’ approach and argues that the birth of cybernetics took up a distinctly non-modern understanding of the brain. See: Andrew Pickering, The Cybernetic Brain: Sketches of Another Future (University of Chicago Press 2010). 27. Carol Gilligan, In a Different Voice (Harvard University Press 1982); Sara Ruddick, Maternal Thinking: Toward a Politics of Peace (Beacon Press 1995). 28. Bregham Dalgliesh, ‘Perspectives from Japan on Privacy and the Supervised Society’, in Carine Dartiguepeyrou (ed), Cahier de Prospective: The Futures of Privacy (Foundation Telecom, Institut Mines-Telecom 2014) 34–5 <http://cvpip.wp.mines-telecom.fr/files/2014/02/1402-The-futur-of-privacy-cahier-de-prospective.pdf#page=16>. 29. Michel Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977–78 (Palgrave Macmillan; République Française 2007). 30. Peter Kropotkin, Mutual Aid: A Factor of Evolution (Freedom Press 1998); Mikhail Bakunin, The Paris Commune and the Idea of the State (CIRA 1971); Richard JF Day, Gramsci Is Dead: Anarchist Currents in the Newest Social Movements (Pluto Press 2005). 31. Katherine Hayles, How We Became Posthuman: Virtual Bodies in Cybernetics, Literature, and Informatics (University of Chicago Press 1999). © 2015 The Author

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replaced with the adaptable mind and the cyborg. 32 Cross-cultural comparisons suggest that in fact the United States is an outlier in terms of its affinity for the autonomous individual and Americans are culturally the most self-aggrandizing and egotistical people on the planet.33 Thus, much of what we know and/or generalize about human behaviour, because it is based upon research done on Americans (and more specifically American college students), should not necessarily be generalized as ‘truth’ for explaining decisions made by people in virtually any other place on the globe.34 Despite these numerous and on-going challenges, the modern concept of the individual as an autonomous and discrete rational subject has prevailed and retains the status of the ‘natural’ state of human ontology, especially in terms of the law. The ideology of the Chicago and earlier Austrian school of economics is premised upon assumptions about human behaviour based exclusively in the autonomous and rational individual.35 American political and legal institutions, especially, have erected a social Darwinian scaffolding around a belief in the individual as the primary agent of action, going so far as to use individual personhood as a container for all sorts of complex formations, most famously the corporation. This default to individuality has rendered many social structures virtually invisible in the ongoing public debates on race, gender, crime or poverty. Generations of philosophy, science, and religion may have failed to alter many of our most basic edifices of human identity and behaviours, or at the very least made relatively little mainstream social impact. It is our view that emerging brain science and deeper integration of mind and machine might prove a tipping point for a transformation of our understanding of what it means to be an individual and how we organize and manage our world. This is because it will present unassailable evidence of the fragmented, layered and continually emergent mind, as well as offer ways for individuals to become more intimately linked with machines and other minds so as to render the notion of boundedness highly problematic, if not irrelevant. The claim has been made that our minds function more like an orchestra than a soloist.36 One of the roles our conscious mind plays is to construct a unitary narrative about identity from the massive amounts of information brought to the brain each second.37 While the complexity of each individual brain suggests that we can see brains as unique, much like fingerprints,38 the notion of a singular ‘I’ is decentred by our understanding of both the brain itself and the relationship of individual brains with the larger world.39 Beyond the fact that the individual brain has no clear centre, the philosophical concept of an extended ecology of mind, initially suggested by Gregory Bateson, and further developed by philosophers David Chalmers and Andy Clark, and now many others, posits that we have for some time now adapted technological extensions for 32. Pickering (n 26) 18–19. 33. Ethan Watters, ‘We Aren’t the World’ <http://www.psmag.com/magazines/magazine-featurestory-magazines/joe-henrich-weird-ultimatum-game-shaking-up-psychology-economics-53135/> accessed 26 April 2014. 34. Ibid. 35. Friedrich A Von Hayek, The Road to Serfdom: With the Intellectuals and Socialism (Institute of Economic Affairs 2005); Milton Friedman, Capitalism and Freedom: Fortieth Anniversary Edition (40th Anniversary edition, University of Chicago Press 2009). 36. Johnson (n 12) 6. 37. Nørretranders (n 20) 283. 38. Johnson (n 12) 4. 39. Hayles (n 31) 6. © 2015 The Author

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the mind that undermine the location of cognition in the individual brain.40 While the prevailing imagery for such a technologically driven future is that we all become cyborgs in the fully integrated sense, Chalmers and Clark suggest that in fact, technology (even that which is not integrated into the brain directly) has already begun taking over for the functions of the brain.41 Smart phones, tablets, GPS systems, libraries, and much more, have allowed us to store and retrieve data not in our grey matter, but in the devices that we carry with us in everyday life. In the process of relying on external storage and of course social structures themselves, the human mind becomes part of a network and extended beyond the boundaries of the skull. The argument for the extended mind blurs the boundary of the skull by asserting its lack of relevance for cognition and creativity. As Katherine Hayles argues, the boundaries of the human subject are constructed, not given. Skin is often not the most relevant boundary.42 The interaction across that boundary, as well as the ways we are already integrated into a network should be the relevant considerations to spark our interest. Beyond the idea that we already use cognitive aids to extend our mind and connect to others creatively, lies the notion of augmented intelligence.43 Sean Gourley, cofounder of the company Quid, used the example of augmented human/machine chess teams to demonstrate that a combination of human and machine was far more powerful and competitive than either human or machine alone.44 Gourley commented that machine augmentation of human intelligence, really seeking to use the machine to supply the hours of time necessary to become an expert, can allow humans to solve the problems we face today that simply cannot be solved by the individual consciousness alone.45 As Einstein famously observed, ‘the problems that exist in the world today cannot be solved by the level of thinking that created them’.46 One way to ‘level up’ our collective intellectual capacity is to more clearly understand the powers of the collaborative and extended mind. Yet another layer of the extended mind can be found in the existence of the ever more integrated human brain into the network of technological enhancements that have been and are now being developed. The brain is itself understood as a layered network, and thus human individuality as already networked into a larger technological infrastructure. The extended mind thus follows the cyborg turn. Proxy servers, robots, sensors, AIs, and much more, construct the distributed network into which what we understand as the contemporary brain can tap. The individual within this globally distributed network is already difficult to locate, and perhaps not entirely relevant. Bratton explains: Some plural User subject that is conjoined by a proxy link or other means could be composed of different types of addressable subjects: two humans in different countries, or a human and 40. TEDxSydney – David Chalmers –The Extended Mind (2011) <http://www.youtube.com/ watch?v=ksasPjrYFTg&feature=youtube_gdata_player> accessed 14 May 2014. 41. Clark and Chalmers (n 20); TEDxSydney – David Chalmers – The Extended Mind (n 40). 42. Hayles (n 31) 84. 43. Big Data and the Rise of Augmented Intelligence: Sean Gourley at TEDxAuckland (2012) <http://www.youtube.com/watch?v=mKZCa_ejbfg&feature=youtube_gdata_player> accessed 14 May 2014. 44. Ibid. 45. Ibid. 46. ‘Albert Einstein Quotes’ <http://thinkexist.com/quotation/the_problems_that_exist_in_the_ world_today_cannot/10140.html> accessed 4 June 2014. © 2015 The Author

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Intellectual property for the neurocentric age: towards a neuropolitics of IP 311 a sensor, a sensor and a bot, a human and a robot and a sensor, a whatever and a whatever. In principle, any one of these subcomponents could not only be part of multiple conjoined positions, but might not even know or need to know which meta-User they contribute to, any more than the microbial biome in your gut needs to know your name. Spoofing with honeypot identities, between humans and nonhumans, is measured against the theoretical address space of IPv6 (roughly 1023 addresses per person) or some other massive universal addressing scheme. The abyssal quantity and range of ‘things’ that could, in principle, participate in these vast pluralities includes real and fictional addressable persons, objects, and locations, and even addressable mass-less relations between things, any of which could be a subUser in this Internet of Haeccities.47

The Internet of everyday things will only further integrate the world into a larger neural net of human-machine connectivity. Yet additional layers of the extended mind can be inserted here. Technological extensions of human capacity can take many forms, from pharmaceuticals to enhance cognitive power to human/computer neural networks and brain/computer interfaces. Scientists have now achieved some limited direct brain-to-brain communication and control,48 indicating that collaborative cognition is one possible future trajectory of the extended mind.49 What types of enhanced cognition pharmaceuticals/software should be/will be allowable remains to be seen. If we prohibit the use of chemical augmentation for competitive sports, what ought we do in terms of cognitive augmentation? At what point do we transcend human consciousness or physical ability? Conversely, at what point do we extend the idea of humanity to what we now call ‘artificial intelligences?’ These questions emerge from thinking about the extended mind. This discussion of the extended mind and the location of the individual within larger neural and technological networks lays the groundwork for the remainder of the article. The destabilization of the individual in terms of creativity and originality should be apparent from the trajectories described here. The stability of the original author is required for the law to function and for authorship to be allocated and assigned. Despite our growing understanding of social and collaborative innovation and the location of the individual within larger networks of creativity, Western law remains aligned with the imaginary of the bounded, autonomous individual. Such a legal fiction will have serious consequences for the continued emergence of innovation, creativity, ownership and control in the landscapes of future intellectual property laws and the technologies of the information age. Without a serious re-evaluation of the role of the individual within spheres of creativity and a more collaborative approach to authorship and ownership within the law itself, the consequences could be significant. While the debate over the concept of authorship is ongoing and not new, making an intervention from the realm of the neuropolitical is new – to the degree that such an approach might shift policy towards a more coherent legal framework for

47. Benjamin Bratton, ‘The Black Stack’ (2014) 53 e-flux journal 1, 7. 48. ‘Welcome to the Mind-Meld: Our Future of Brain-to-Brain Communication’ <http://blogs. discovermagazine.com/crux/2013/10/25/mind-meld-future-of-brain-to-brain-communication/> accessed 14 May 2014. 49. For a science fiction possibly to turn into a science fact version of this technological possibility read the wonderfully written books by Ramez Naam who has also written about the possibilities from the technical perspective. See: Ramez Naam, Nexus (Angry Robot 2012); Ramez Naam, Crux (Angry Robot 2013); Ramez Naam, More Than Human: Embracing the Promise of Biological Enhancement (http://Lulu.com 2010). © 2015 The Author

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understanding innovation and creativity, deploying neuroscientific evidence may be politically important. What positioning our analysis in the neurocentric age makes clear is that creativity is both something that can be assessed at a far more granular level (the level of neurons) and it also can, and will, be assessed within the larger context of the extended mind. The relationship between the individual and the collective, long a challenge for IP law, is directly affected by our growing knowledge of the brain and its further integration into technologically driven networks. These emerging technologies create zones of transformative potential where we can construct thought experiments from the future. What has become clear from the ongoing and increasingly profound research into the brain and the continued evolution of our technological interfaces is that legal regimes will ultimately be impacted, either beneficially or negatively. Criminal law is already grappling with the implications of brain-related technologies and what they tell us about human culpability. We would like to be clear upfront that we understand the primary goal of modern intellectual property law is to provide an economic incentive for creation and a limited monopoly for the owners of intellectual property so that they are rewarded economically for their creative work. However, much like the underlying assumptions of criminal law that are now being challenged by the brain sciences and what they have to say about the autonomous individual, intellectual property law and its economic assumptions are also challenged by new understandings of how creativity and innovation function at the neurological level. Thus, the futures of intellectual property law cannot ignore the knowledge being generated about the collaborative nature of creativity and continue to make increasingly inaccurate claims about how individuals (or corporations) ought to own things. It might also be the case that multiple other possibilities become opened up once we understand creativity both at the level of the individual brain, but also that individual brain within the network of the extended mind. We offer the following scenarios to highlight how the neurocentric age may begin to frame questions of originality, ownership, authorship, and much more. Our goal is to focus on thorny IP issues where the new tools of brain science may provide new challenges, new opportunities, and the possibility for new layers of control and surveillance. 4 WHY SCENARIOS? Scenarios have a long history in business, policy and philosophical discussions. They can be used to provoke new thinking and to lead to better strategic decision-making.50 We employ scenarios, coherent and plausible stories about the future, to draw attention to the multiple, interacting layers of forces and agents. The narrative form allows us to telescope up and down, from high-level policy and power to micro-scale impacts on people and daily activities. Scenarios are not predictions, they are purposefully crafted projections designed to spark a discussion about the role of law as it relates to regulating and rewarding creativity. None of these are, a priori, meant to be a best case or worst case future. They carve out sections of possibility space for reflection, critique and preparation. Scenarios more often provoke questions than solve dilemmas, but if successfully articulated, 50. Thomas J Chermack, Scenario Planning in Organizations: How to Create, Use, and Assess Scenarios (1st edition, Berrett-Koehler Publishers 2011). Š 2015 The Author

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can re-frame issues in a way that opens up new avenues and opportunities for response.51 We offer some examples of this productive re-framing at the end of each scenario to show how we might respond to some of the dilemmas suggested within the narratives. 5 ALTERNATIVE NEUROPOLITICAL IP FUTURES 5.1 Policing originality – cryptoamnesia or deliberate plagiarism: using brain scans to unearth appropriation In 1981 after several years of litigation, former Beatle George Harrison was found guilty of ‘subconscious plagiarism’ for the substantial similarity between his solo hit ‘My Sweet Lord’ and the 1962 song ‘He’s so Fine’ by the Chiffons.52 The court did not believe Harrison had intentionally plagiarized the song, but in the end he was still required to pay Bright Tunes Music Corporation (who owned the copyright, but had not participated in the recording of the original song) $587,000.53 Harrison was held legally responsible for his subconscious appropriation. 54 Helen Keller, perhaps one of America’s best-known examples of overcoming personal odds to achieve great success, was also charged quite early in life with plagiarism. As an 11-year-old, she wrote ‘The Frost King’, which because of her unique disabilities/abilities reached fairly wide distribution and attention. Upon broader examination the story turned out to have appropriated verbatim the words from a children’s book entitled ‘The Frost Fairies’ by Margaret Canby. At some point years prior to writing her own story, Canby’s book had been read to Keller using the special sign language developed for her and thus it had become part of her memory and subconsciously reproduced as her own.55 Such subconscious plagiarism, when a person believes mistakenly that an idea derived from someone else is actually their own, is defined as cryptoamnesia.56 It turns out to be quite common and is increasingly common (or at least easier to identify) in the age of instant access to information in vast quantities.57

51. Cynthia Selin, ‘Trust and the Illusive Force of Scenarios’ (2006) 38 Futures 1. 52. ‘Famous Copyright Infringement Plagiarism Cases in Music’ <http://www.fairwagelawyers. com/most-famous-music-copyright-infringment.html> accessed 15 May 2014. 53. Ibid. 54. Robin Feldman, ‘The Role of the Subconscious in Intellectual Property Law’ (2010) 2 Hastings Science & Technology Law Journal 1, 7, citing Bright Tunes Music Corp. v. Harrisongs Music, Ltd, 420 F. Supp. 177 (S.D.N.Y. 1976), aff’d sub nom. ABKCO Music Inc. v. Harrisongs Music, Ltd, 722 F.2d 988 (2d Cir. 1983). Feldman also references a more recent case, Three Boys Music Corporation v. Michael Bolton where Bolton was found to have subconsciously copied the Isley Brothers’ ‘Love Is a Wonderful Thing’ despite any direct evidence of the fact (ibid at 8–9). 55. Cynthia Ozick, ‘What Helen Keller Saw’ [2003] The New Yorker <http://www.newyorker. com/archive/2003/06/16/030616crat_atlarge?currentPage=all> accessed 15 May 2014. 56. Alan S Brown and Dana R Murphy, ‘Cryptomnesia: Delineating Inadvertent Plagiarism’ (1989) 15 Journal of Experimental Psychology: Learning, Memory, and Cognition 432; Narinder Kapur, The Paradoxical Brain (Cambridge University Press 2011) 169. 57. Rosemary Black, ‘Cryptomnesia, or Subconscious Plagiarism, Is a Side Effect of Information Overload’ NY Daily News, 14 July 2009 <http://www.nydailynews.com/life-style/health/ cryptomnesia-subconscious-plagiarism-side-effect-information-overload-article-1.426677> accessed 15 May 2014. © 2015 The Author

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There are numerous instances of substantial similarity without attribution that continue to mark the complexities of the idea/expression dichotomy and the quickness with which some are willing to establish rigid boundaries around what they claim to be their own. Recently Michael Heilmann produced an annotated Star Wars movie that illustrated the appropriation and some would say copyright violating ‘inspiration’ central to what Lucas might call his ‘original’ work. The intent of the project was to elaborate on how the ideas of others are woven together and better understand how creativity works when separated from the assumptions of the original genius.58 As Heilmann notes about his time-consuming project and its intent: The creative process that brought forth Star Wars is nothing short of amazing, and despite that fact that some people always seem to misunderstand the intent behind projects like Kitbashed, it is not my intent to ‘reveal how Star Wars is in reality completely unoriginal’. If you believe that’s what it does, you do not understand creativity.59

However, given the extended mind implications of the work, it does imply that perhaps the Lucas franchise should not police the boundaries of their own work so closely. While not suggesting cryptoamnesia, the work done by Heilmann shows the fluidity of the creative process and the very real fact that originality is not the standard that is best suited to measure creative works. The recent furore over the possibility that Lolita was not original to Nabokov but instead was based upon an obscure German short story published several decades earlier is yet another example of using our conscious and subconscious links to the ideas of others to somehow disparage the creative work of an author.60 Nabokov perhaps engaged in a cryptoamnesian act; it could be that he read the original German short story but never consciously understood its role in his own inspiration.61 Given that he is dead, we cannot challenge his memory of creativity, either manufactured or true. What emerges most obviously from such stories is that creativity and inspiration are part of the extended mind at work. Perhaps ironically, such assertions of individuality come in the wake of evidence that we are inherently creatures who mimic in order to learn and interact.62 The brain itself becomes a culprit and villain as it betrays us by demonstrating the fiction of original authorship. A similar process of attempting to understand the moment of originality is at work in patent law. The doctrine of inequitable conduct requires a patent applicant to disclose any prior work that they knew of 58. Josh Jones, ‘2 Hour Annotated Star Wars Film Reveals the Cinematic Influences Behind George Lucas’ Classic Film’ <http://www.openculture.com/2014/06/2-hour-annotated-starwars-film-reveals-the-cinematic-influences-behind-george-lucas-classic-film.html> accessed 4 June 2014. 59. Michael Heilemann, ‘Kitbashed’ (Kitbashed) <http://kitbashed.com/about/> accessed 4 June 2014. 60. Nick Paton Walsh, ‘Novel Twist Nabokov Family Rejects Lolita Plagiarism Claim’ The Guardian (2 April 2004) <http://www.theguardian.com/world/2004/apr/02/books.booksnews> accessed 15 May 2014. 61. Ron Rosenbaum, ‘New Lolita Scandal! Did Nabokov Suffer From Cryptomnesia?’ Observer <http://observer.com/2004/04/new-lolita-scandal-did-nabokov-suffer-from-cryptomnesia/> accessed 15 May 2014. 62. David Derbyshire, ‘Born Copycats! Why We Just Can’t Fight the Subconscious Impulse to Imitate Others’ Mail Online (20 July 2011) <http://www.dailymail.co.uk/sciencetech/article2016708/Born-copycats-Why-just-fight-subconscious-impulse-imitate-others.html> accessed 22 March 2015; Richard Cook et al., ‘Mirror Neurons: From Origin to Function’ (2014) 37 Behavioral and Brain Sciences 177. © 2015 The Author

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when filing their own patent.63 However, the concern produced by the very real human trait of assimilating knowledge and often forgetting its source can lead to similar problems in patent applications as it has done for copyrighted works. If indeed we are to more adequately reflect the creative methods central to how the brain and thus creativity functions, then we should consider relaxing the rigid boundaries defined by original ownership of a text. As science journalist Matthew Hutson notes: It’s easy to absorb an idea and then believe honestly that it was generated by yourself. (Or, more subtly, to remember where one first heard an idea but later find it no longer surprising and in fact so obvious and intuitive that it doesn’t deserve explicit attribution – a type of hindsight bias.)64

In fact, one of the most common narratives of originality is that it seems to come from nowhere or to emerge through the individual from a higher place. So, why do we cling to the idea that the individual is at the centre of the creative act instead of cultivating the promise of the creative and connected extended mind? Researchers looking into the phenomenon of cryptoamnesia suggest that in fact, the very essence of human learning is premised upon copying others.65 Furthermore, research on college students has found that such subconscious plagiarism happens in everyday life and is not simply a function of laboratory experiments.66 Cryptoamnesia is of interest to neuroscientists at the University of Georgia who are looking to better understand the role of the brain in the process of the appropriation of ideas.67 Others have contributed experimental data that suggests that when engaged in generative tasks to create novel ideas, ‘participants will inadvertently use prior knowledge from examples or previously stored concepts, even under specific admonition instructions to avoid doing so’.68 In other words, while ‘novel’ ideas rely upon prior knowledge, it is often the case that those asked to engage in novel thinking rely inadvertently on access to such prior knowledge to create new ideas. In terms of theoretical implications for creativity, the authors of this study conclude that broad access to prior knowledge may enhance generative (creative) activity, but novel solutions will draw both upon advertent and inadvertent sources.69 Currently, the narrative of the scholarship on cryptoamnesia finds that part of the ‘blame’ for the failure to identify a source can be attributed to something scientists call ‘source memory’ glitches, or source amnesia – the brain does not feel the source is as relevant as the information it has received and thus forgets the source.70 What is fascinating about how these scientific and journalistic accounts situate the notion of 63. Feldman (n 54) 3. 64. Matthew Hutson, ‘Inception Is Easier than Extraction’ Psychology Today (20 December 2010) <http://www.psychologytoday.com/blog/psyched/201012/inception-is-easier-extraction> accessed 15 May 2014. 65. Russ Juskalian, ‘Is Unconscious Plagiarism a Real Phenomenon?’ Newsweek (6 July 2009) <http://www.newsweek.com/unconscious-plagiarism-real-phenomenon-81861> accessed 15 May 2014. 66. Anne-Catherine Defeldre, ‘Inadvertent Plagiarism in Everyday Life’ (2005) 19 Applied Cognitive Psychology 1. 67. Black (n 57). 68. Richard L Marsh, Thomas B Ward and Joshua D Landau, ‘The Inadvertent Use of Prior Knowledge in a Generative Cognitive Task’ (1999) 27 Memory & Cognition 94, 95. 69. Ibid 104. 70. Black (n 57); Brown and Murphy (n 56) 432. © 2015 The Author

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subconscious plagiarism is that there is an underlying assumption that individual and original thought is the standard by which we should measure the function of the brain and our connection to others. Even in the face of evidence that the brain functions in a manner based upon copying and misallocation of source information because such information is not perceived as important, at least to the brain, the conclusion reached by brain researchers is that such behaviour is ‘sloppy psychology’ on the part of the individual and that we ought to work harder to assure that we do not engage in any sort of unintentional copying.71 The question is why blame the brain and the individual? If we change the frame of our examination, the problem is not cryptoamnesia but rather the concept of originality and possibly even the requirement for attribution. It is simply not true that originality exists absent the work of others and it is often not possible to extend attribution for ideas when one doesn’t even remember where they came from. If we take the brain science on creativity that suggests humans draw from the work of others when creating something novel, and begin from the logic of the extended mind while also attempting to displace the notions of originality currently used to assert ownership over expressions, then a different logic of copyright might emerge. Studies have shown that creativity is related to a reduction in the neurotransmitter norepinephrine, which is associated with long-term memory retrieval. When this neurotransmitter is lowered new connections can be made thus enhancing creative leaps.72 Turning off long-term memory to enhance creativity most likely opens up the mind to cryptoamnesia. If we indeed seek new innovative things, then we must also recognize the wider world into which individual creation is introduced. Perhaps we should stop worrying so much about ‘substantial similarity’ and instead embrace all the many expressions of an idea, no matter how ‘original’ they might be. Nabokov’s work remains important no matter where the ideas came from, or their similarity to a prior story. His specific written expression is fixed in time as something that cannot be copied without permission, but nothing else should be his to own. Thus, to reflect the extended mind and the debts any innovator owes to the broader sphere of creative work, copyright law should only protect a specific expression, not those similar to it. Some areas of innovation have not yet solidified ownership over all aspects of the creative process. American fashion designers embrace copying under the label of ‘inspiration’ more so than other creative industries. However, given Europe has already established copyright laws in fashion design, the US has also sought to extend copyright protection into this sphere.73 Following the logic of this scenario, we would suggest instead of shifting fashion design towards the larger and tightly limited world now forced upon other creative media from songs to literature, we should instead broaden out all other forms of creativity to allow for more appropriation – in part because that is how the brain works. If, however, we retain the claim that there ought to be rigid boundaries between the thoughts of one person and another, then the use of brain science, especially brain imagery can be used quite differently. At some point soon it may be quite possible to use fMRI, EEG, or other scanning techniques to determine if a previous work can be 71. Juskalian (n 65). 72. Marjorie S Schiering, ‘Creative Cognition’ <http://brainworldmagazine.com/creativecognition/> accessed 1 May 2014. 73. Cathy Horyn, ‘Schumer Bill Seeks to Protect Fashion Design’ New York Times (5 August 2010) <http://runway.blogs.nytimes.com/2010/08/05/schumer-bill-seeks-to-protect-fashiondesign/?ref=fashion> accessed 9 August 2010. © 2015 The Author

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‘seen’ on the brain – to determine if the plagiarism was coincidental, unintentional or intentional. Already, lie detectors can determine if one is intentionally lying with some degree of accuracy.74 However, better access to the internal thoughts and memories of a person and the ability to see what they are thinking, mean that we could possibly locate the origins of an idea and more clearly identify its source within a pattern of neuronal activity. If we follow this scenario towards its policy conclusions, a neuropolitically informed IP law of the future would be far more limited in scope because originality outside of the extended mind is significantly circumscribed. Cryptoamnesia is an already recognized cognitive function within neuroscience, but has not been adequately integrated into legal understandings of originality and creativity. Instead, the courts blame the individual and remunerate those whom they see as the ‘original’ author, though such a thing does not exist. A future that ignores the growing body of scientific literature on the cognition of creativity is an example of neuropolitics where a legal system, in this case copyright and patent law in which original invention and authorship are crucial foundational structures, does not match the underlying science of innovation. As a result, the law punishes unfairly and establishes ownership too rigorously, both of which will harm future creativity more than help it. 5.2 Fractal ownership – the extended mind at work In conventional copyright, the lines between authors, inspiration, appropriation, and how one might own a collaborative work, can cause profound difficulties. Even if the law is clear about what joint ownership is, this legal approach is a simplification of creative processes that rarely reflects the true nuances of creativity, innovation and inspiration. The fact that assigning sole or even joint authorship does not begin to recognize the collective contributions of the many who are involved is more about consolidating ownership and wealth than it is about accurately understanding the way creativity works. Movies, for example, are intrinsically collaborative and involve the time, energy, talents and work of a multitude, yet the final copyright owners may not reflect this diversity of input given that most people work for hire. Recently, a law was introduced in the US House of Representatives that would allocate royalties in digital music amongst producers, engineers and mixers, along with the songwriters and singers. The Act, called the Allocation for Music Producers Act (AMP Act), HR 1457, seeks to recognize that a contemporary piece of recorded music is the collaborative work of many, with much of that work going unrecognized.75 Both patents and copyrights can be filed jointly, but for the most part these laws attempt to keep ownership easy by establishing clear lines around a creative product and policing the reproduction of unauthorized copies. By contrast, if indeed we are to embrace the notion of remuneration for creative contributions within the scheme allowed via copyright and patent laws and their associated licensing schemes, then we ought to follow the logic of this privatization of creative work to ensure that everyone who contributes is acknowledged. For example, a work of scholarship serves as an example of fractal debts. Typically, attribution is 74. Farah et al. (n 14). 75. Ryan Middleton, ‘Producers, Mixers and Engineers to Get Digital Royalties in New House Bill’ Music Times (19 March 2015) <http://www.musictimes.com/articles/32472/20150319/ producers-mixers-engineers-digital-royalties-new-house-bill.htm> accessed 25 March 2015. © 2015 The Author

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assigned to the sole author or a group of authors. Each book or journal article contains references to the hundreds of works that came before, which in turn contain the references to even more connections, and so on. When an individual stakes out a line and claims ownership of the expressions on one side of that line, they are as intellectually dishonest as the film industry mogul who claims to own the intellectual property associated with a film and reaps the majority of the financial benefits (or losses) without disseminating these to all contributors both present and past. In each case, though the law exists to remunerate a copyright owner and is primarily concerned with economic incentives for creativity, the myriad challenges under copyright law when attribution is withheld or those that create the works are not paid, suggests that copyright law should think less about assigning ownership to a sole or joint set of authors and instead – if indeed we take seriously the notion of the extended mind and wish to construct an economic model that remunerates all contributions to creative work – we ought to think about fractal ownership. By fractal ownership, we mean that all contributors, past and present, should receive remuneration for their contributions, however slight, to a new invention or creative work. Think of it as pay-per-citation, or prior art remuneration all the way back. The recent success of crowdsourced gamers solving complex scientific problems using the gaming process Fold.it is an example of fractal innovation where collaborative problem-solving means the whole transcends the sum of its parts. As the scientists who published the results in Nature (with authorship attributed to the thousands of players as well) note, the success in solving a complex problem related to the biochemistry of the AIDS virus, ‘indicate the potential for integrating video games into the real-world scientific process: the ingenuity of game players is a formidable force that, if properly directed, can be used to solve a wide range of scientific problems’.76 Such scientific success helps support the notion of the ‘wisdom of the crowds’ thesis.77 However, given the fixation in copyright law on the notion of sole ownership, we have constructed an attribution model that rewards a single contributor or at best a small group. If we seek to truly compensate based upon attribution – the opposite of the previous scenario where we suggest we should release creativity from individual authorship – then we should go all the way down this rabbit hole and create a system of fractional ownership and compulsory licensing that allows for a kind of granularity of ownership which recognizes everyone’s collective contributions to creative and innovative works. The recent lawsuit over Led Zeppelin’s ‘Stairway to Heaven’ is an example. More than forty years after the song was first sung, the estate for the lesser-known band Spirit, who toured with Zeppelin prior to the composition of ‘Stairway to Heaven’, is suing for copyright infringement.78 Indeed, the two songs share a very similar (and simplistic) chord progression. Should there be credit assigned to now deceased guitarist Randy California? Perhaps. However, if credit is assigned to him, then it must also be assigned 76. Firas Khatib et al., ‘Crystal Structure of a Monomeric Retroviral Protease Solved by Protein Folding Game Players’ (2011) 18 Nature Structural & Molecular Biology 1175. 77. Clay Shirky, Here Comes Everybody: The Power of Organizing without Organizations (Penguin Press 2008). 78. Oliver Herzfeld, ‘Spirit v. Led Zeppelin: Analysis of the ‘Stairway to Heaven’ Infringement Lawsuit’ Forbes (21 May 2014) <http://www.forbes.com/sites/oliverherzfeld/2014/05/ 21/spirit-v-led-zeppelin-analysis-of-the-stairway-to-heaven-infringement-lawsuit/> accessed 23 May 2014. © 2015 The Author

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to every influence direct and indirect on the style and sound of his music as well. And so on. If a prior artist seeks to pursue copyright claims, then such fractal attribution and ownership is a logical and fair way to assess inspiration and contributions, even if it creates certain complexities and inefficiencies at first. But these issues are being addressed in other domains that IP law could leverage. Open source creation in the Github fashion sets up the stage for such a process.79 If all users become contributors and the commons becomes something we all contribute to, then how ought we to divide attribution fairly? If creativity is monetized then the rewards should be divided accordingly. Instead of centralizing profits, the flow of profits should go downstream and become fractal. This is the logic of the extended mind at work and a far more accurate assessment of creativity than the one upon which current copyright or patent law is based. However, if artists believe they have difficulties surviving under the current system of reward, the giant pyramid scheme of creativity that would result from a fractal understanding of inspiration is even more complex. The current trajectory of copyright, patent and other forms of intellectual property law point towards increasing fights over the ownership of fragments. Copyrights and patents exist to turn creative work into a commodity and monetize its use. However, by misunderstanding the extended nature of creativity, copyright and patent law ignore and define away the fact that fractal ownership would more accurately describe ‘ownership’. If indeed we seek to assert ownership over all aspects of creation, then fractioning ownership certainly better describes the act of creativity and disrupts the notion that any work is unitary and the creation of a solitary and individual mind. The challenge may be how to implement such a fractal ownership scheme, but it is likely that this problem could be solved technologically. Think, for example, of how RFID chips can be used to track products from cradle to grave, or how digital rights management (DRM) puts watermarks on music. In each case, technologies of control and surveillance exist that could be directed towards increasing remuneration for fractal ownership. Think of it as a digital bibliography with hyperlinks to a bank account. Obviously, current schemes, especially in the recording industry, do not allocate profits fairly. However, systems could be established to do this more transparently and fairly. By following the path towards fractal ownership and more accurately allocating rewards along the lines of contributions and attributions, one might be able to clarify the network of creativity that is the product of the extended mind. The disadvantage of such ownership is that how a work might be used may become far more complex because it risks the possibility of being frozen in a maze of licensing agreements and micropayments. Given the trajectory of current American copyright law, it would seem we are already on the pathway to fractal ownership and a more heightened effort to acquire some share of the profits for a work when one has contributed to it. As long as creative work is understood as maximizing profit for the owner, then we should of course extend this profit maximization opportunity to all the ‘owners’ of a work. This is the logical conclusion of the current system, assuming that creativity is incentivized by monetary rewards. It does not make sense to only give to the current person asserting ownership over creative work a cut of the profits, we now have the technology to let such adaptations, inspirations and other forms of appropriation ripple backwards towards the original sources. It could be that the future is one 79. Mikeal Rogers, ‘The GitHub Revolution: Why We’re All in Open Source Now | Opinion’ WIRED (7 March 2013) <http://www.wired.com/2013/03/github/> accessed 17 May 2014. © 2015 The Author

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where every word/sentence/expression/nuance becomes owned by someone and microremuneration follows ownership. This is perhaps the libertarian dream – total propertization of everything, but it may not best benefit the larger sharing of information. By contrast, it could be possible to reject the micropayments of fractal ownership and disassociate much of what is innovative from protection under copyright law. Dealing with the understanding that cultural creativity is collaborative and assigning ownership appropriately is one important policy challenge raised by the neurocentric age. Rather than moving towards fractal ownership, it could be that the law reduces dramatically what can be ‘owned’ and locates the line between idea and expression much more closely with the specific expression. Thus, only direct copying remains unauthorized under the law but all other derivative uses are possible. 5.3 Cognitive labour farms Our current paradigm of intellectual property protection allows for the creative output of workers to be owned by the corporations or institutions for whom they work, or to be sold to the entertainment industries who control the rights in exchange for the potential of success. While trade secret law today recognizes that employees cannot disassociate themselves from the general knowledge they have learned on the job, there is a limit to what an employer can claim to own under the law.80 To assert more expansive control, companies today require extensive and possibly invasive non-compete agreements for employees that restrict them from moving to other companies and taking what the company believes to be their intellectual property with them. While it may be that such agreements have problematic legal legitimacy, many who sign these agreements never test the limits. These agreements often include clauses that require an employee to assign rights to inventions that they create in their spare time to their company, even if they have nothing to do with the company’s work. However, these non-compete agreements are relatively blunt instruments because they do not enter the mind of the employee, but rather rest on the logic that to stop an employee from using their knowledge elsewhere, they are forbidden from working in a similar field for some number of years. In other words, the system is set up to ensure that creative work is filtered from those who do the work to those who own the work. One might already understand much of the global corporate structure to be a vast cognitive labour farm, one where individual creative autonomy is waived for a wage or the possibility of creative success.81 Such a system within the context of extended mind technologies and human/machine hybrids raises new questions about the scope of ownership and individual autonomy in the future. Brain science is finding that creativity and intelligence emerge from a distributed neural network with no attributable ‘centre’ creating original thought. Instead, hubs function as centres of communication, with different parts of the brain all playing a role in creative work.82 Our growing understanding of creativity suggests that we can chemically and technologically augment the brain to enhance intelligence and 80. Feldman (n 54) 3. 81. Yann Moulier-Boutang, Cognitive Capitalism (1st edition, Polity 2012). 82. Rex Eugene Jung et al., ‘The Structure of Creative Cognition in the Human Brain’ (2013) 7 Frontiers in Human Neuroscience 330; Haier and Jung (n 16) 173. © 2015 The Author

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creativity, or at the very least we can begin to speculate about the possibility of doing so.83 As mentioned earlier, creativity is related to a reduction in the neurotransmitter norepinephrine, which is associated with long-term memory retrieval.84 Thus, it could be possible to enhance creativity and possibly intelligence with the appropriate cognitive therapy. The implications for nuanced modulation of the individual through cognitive adjustments are important to consider. The neurocentric age may demand methods for adjusting the individual consciousness to adhere to larger social norms. Dunagan argues that: In an age of neuropower, we will also begin to see a whole constellation of measurements, metrics, and knowledge form around cognitive and emotional states. Soon, we will come to know (and obsess) over our average dopamine levels, our brain fitness levels, our working memory score, and our optimal concentration range. Then, we will cognitively train or neuromodulate in order to do something about those scores to bring them into optimal states. As a population, we’ll begin to measure our happiness or mental acuity and productivity. We’ll design government policy and develop cognitive ergonomics to help raise our mental effectiveness and to track our progress over time.85

However, in the future, such modulations may not be under the control of the individual. Might governments force cognitive enhancers to be taken by citizens?86 Or, as we already see today, might students and workers be forced to take enhancements simply to compete with peers for jobs and advancement? Might you be reprimanded at work for not taking drugs? How might cognitive enhancements otherwise complicate ownership in the future? Right now providers of cognitive enhancing drugs have staked no claim over the creations of the takers of their drugs. However, some companies and universities have engaged in what might be called artistic sharecropping,87 that is, claiming ownership over student or worker creations done under their auspices because they have provided the conditions of possibility for those creations. As our minds become further extended with drugs and technological prostheses, might those drug/tech providers see their role as more constitutive and begin to make more aggressive ownership claims? How might those who construct the technology that makes people creative take credit for that creativity? Can we imagine a way to enhance human brains but harness them to do their intellectual work for others? In reality this is the corporate model we now embrace, but with better technology. We do not need to go this far to wonder about the dividing lines of ownership made possible through new technologies. The human composer owns the music created on a digital keyboard, but as these works are programmed with hundreds of beats, sounds and possibilities and begin to integrate elements of learning software and AI, might the technology and software creator be given more credit for the final creations? As Ray Kurzweil, one of the early inventors of music synthesizers asks in regards to David 83. Haier and Jung (n 16) 177. 84. Schiering (n 72). 85. Dunagan (n 8) 60. 86. Julian Savulescu, ‘Fluoride and the Future: Population Level Cognitive Enhancement’ Practical Ethics (8 February 2008) <http://blog.practicalethics.ox.ac.uk/2008/02/fluoride-andthe-future-population-level-cognitive-enhancement/> accessed 1 April 2015. 87. Lawrence Lessig, ‘On Teaching Artists’ Rights’ <http://www.lessig.org/2007/08/on-teachingartists-rights/> accessed 1 April 2015. © 2015 The Author

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Cope’s advanced music emulator EMMY, ‘when Cope’s program writes a delightful turn of musical phrase, who is the artist: the composer being emulated, Cope’s software, or David Cope himself?’88 Things that might once have been commonly understood, such as who is the composer of a piece of music, are going to have to be more explicitly stated in the future. One should keep a close eye on the shrink-wrap contracts for AI-embedded systems in coming years. While rudimentary, imaging systems are being developed that can accurately predict what images you are seeing and even what words you are thinking.89 When mind/ machine hybrids are more common, how will ownership over creative work be assigned? What happens when the technologies for pinpointing the idea in the brain become more sophisticated – can you extract a notion simply from looking at a brain scan? Will a brain scan meet a legal barrier to claim that an expression was ‘fixed’ in a tangible medium? Can a brain scan itself become a copyrighted work? These are questions the neurocentric age raises, concerning which we may want to rethink our boundaries, assessment and enforcement of property rights. Ironically, because copyright law tends to already protect corporate interests more so than the individual creator, it is unlikely that much would have to change to assert ownership even deeper into the human brain. Of concern, obviously, are the threats to individual freedom and the right to benefit from one’s own creations that are derived from the enhanced scope and reach of these ownership rights. The same might be true for patented inventions. However, these inventions might not only pose similar ownership problems, but each device used to further integrate human beings into the cognitive labour farm of this future would itself be patented and controlled. Striking out into the future speculative space, what about more fully developed machine intelligences and the human-machine hybrids some call posthumans? The very notion of artificial intelligence that is indistinguishable from human intelligence already poses a significant challenge to the foundations upon which we rest our humanity – that as a problem solving, creative species, we somehow surpass all others on the planet. Establishing issues of ownership in the posthuman age will require us to think through not only the boundaries of the human but also the boundaries of how we own ideas as well. The posthuman poses numerous policy problems where IP is concerned. For example, a posthuman mind might not die, but instead be re-created on digital networks in various permutations and possibilities. Additionally, new layers of artificial intelligence that can create art, music, literature, and more, will not be subject to the same life expanses as humans. Even humans, in the posthuman world may see their lives extended beyond current terms, rendering copyright perpetual from a very different cause. What do we do with a policy proposal that is contingent upon the death of the ‘author’, when indeed the ‘author’ might not die? Either way, perhaps it is time to consider the period of ownership associated with creative work and limit this timeframe to more accurately reflect the rate of change and innovation in the world today. By disassociating terms for copyright from the life of the author, much in the same way as patents last for a limited time, we can establish different possibilities for how creative work supports the commons and the public 88. William Hochberg, ‘When Robots Write Songs’ The Atlantic (7 August 2014) <http:// www.theatlantic.com/entertainment/archive/2014/08/computers-that-compose/374916/> accessed 1 April 2015. 89. Kerri Smith, ‘Brain Decoding: Reading Minds’ (2013) 502 Nature 428. © 2015 The Author

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domain. One possibility is to limit copyright terms to a short period – like the American original design of 14 years. Assigning copyright based upon the ‘life’ of an author will be increasingly meaningless when authors may not have ever have been alive, or may never die. 6 TOWARDS A NEUROPOLITICS OF IP LAW These thought experiments and near-future possibilities raise significant questions for the neuropolitics of intellectual property law. Much of the latest behavioural economics and psychology of choice studies have shown that people are not primarily rational beings.90 We are deeply collaborative, social, opportunistic and cognitively promiscuous. When the individual is a node in a far broader distributed network – a new sort of ontology recapitulates philology. How might the law change (or not change) to reflect these revised core assumptions about human ‘nature’, creativity and decision-making? What institutional designs should we revise, or what new ones should we build? The scenarios have illustrated several possible ways the neuroscientific age might generate new ways of understanding creativity by better understanding the brain and extended mind. They also dramatize situations in which this new understanding of the brain might be manipulated and legally controlled. While the literature on IP has long questioned the underlying myth of the romantic author,91 contemporary neuroscience helps contextualize these debates in new ways – bringing new language, insights and points of intervention into the conversation. There are more speculative issues that can and will emerge in the coming years and decades. These will also need to be dealt with as we think through a neuropolitics of IP. For example, automated systems and software ‘bots’ are communicating on social media,92 writing news stories,93 composing symphonies,94 and even learning to rewrite their own code.95 When these programs learn how to learn and become more autonomous, how will questions of novelty, originality and ownership be addressed by the law? Will assignment of rights to the ‘owners’ or employers of the bots be just or fair? This could be a tricky question for machines as machines, but as humans and machines become more integrated and the coupling grows even stronger, and 90. Dan Ariely, Predictably Irrational: The Hidden Forces That Shape Our Decisions (Revised and expanded edition, Harper Perennial 2010); Richard H Thaler and Cass R Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (Revised and expanded edition, Penguin Books 2009). 91. Woodmansee and Jaszi (n 6); Woodmansee, ‘The Genius and the Copyright’ (n 6); Rosemary J Coombe, The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law (Duke University Press 1998); Mark Rose, Authors and Owners: The Invention of Copyright (Harvard University Press 1993). 92. Tim Hwang, Ian Pearce and Max Nanis, ‘Socialbots: Voices from the Fronts’ (2012) 19 Interactions 38. 93. Steven Levy, ‘Can an Algorithm Write a Better News Story Than a Human Reporter?’ WIRED (24 April 2012) <http://www.wired.com/2012/04/can-an-algorithm-write-a-betternews-story-than-a-human-reporter/> accessed 1 April 2015. 94. Hochberg (n 88). 95. John Bates, ‘Self-Learning Algorithms: The New Frontier for Trading and Market Surveillance’ Wall Street & Technology (27 March 2013) <http://www.wallstreetandtech.com/tradingtechnology/self-learning-algorithms-the-new-frontie/240151797> accessed 1 April 2015. © 2015 The Author

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creative networks become more complicated, how might we distinguish and fairly assign rights and rewards? In terms of other speculative possibilities, it is becoming more and more possible to see or surmise what one is thinking (to ‘read’ a mind).96 We can easily see the political threats to personal freedom from this kind of surveillance, with authorities looking to read a criminal mind in order to prevent a violent act. Less extreme perhaps, but relevant to the discussion of IP, might ideas or expressions be ‘lifted’ from people as they are thinking them? If fashion design is today based upon inspiration as viewing the work of others and then copying it, what possibilities exist when we can tap directly into the minds of others? Of course, their ideas and our own are already merged. Thinking through the future possibilities opened up by new technologies of the brain suggest the inadequacies in how we conceptualize innovation through IP laws today. Furthermore, efforts to control and own creativity might have more serious consequences for the individual if IP law is allowed to expand even more broadly instead of becoming more limited. Might a corporation or employer delve into the individual mind of workers to claim ownership of an invention before it was even articulated, or seek to own broad aspects of employees’ creativity and cognition? Might contracts and NDAs come with the ‘right to scan’ a worker’s brain before and after employment? There are other relations of creation and reception to consider as well. A future set of IP laws might wish to take into consideration the importance of the audience in creating value for a creative work. Crowds make creative work popular but are nowhere reflected in the law as important. If a creative work is not adopted and popularized by the crowd it will not make money for the artist. Becoming popular takes work and connection to an audience of people.97 Copyright law hardly acknowledges the importance of the audience at all, as most clearly demonstrated in how it has been used in the battles over peer-to-peer file-sharing. Specifically, the fines enshrined in copyright law today were initially designed to keep commercial piracy from competing with the official commercial copyright owner. They were not meant to be levelled at individuals downloading songs from the Internet. But as the barriers to entry for copying and sharing works have been lowered (simply a computer and a networked connection, as opposed to large and costly printing presses), individuals are now in the crosshairs of the law for engaging in normal human activities of exchanging media and information with peers. That an individual user can be fined thousands, if not hundreds of thousands of dollars for digital downloads is a perversion of the intent of IP law and disrespects the importance of the audience and the crowd in rendering a creative work intelligible and popular. Much of what the many entertainment industries produce flops miserably. There are multiple types of failures. There are of course the failures that come when economic benchmarks are not met, which may have little to do with popularity and everything to do with expectations of profits. In this case, a creative product might actually have sold quite well, but not sufficiently to meet corporate expectations. Then there are the types of failures where despite the best advertising campaigns and all the possible benefits a creative product might be given, the public simply doesn’t consume it. In part this 96. See, eg, the ‘mind reading’ and visualization experiments at UC Berkeley’s Gallant Lab. <http://www.gallantlab.org/>. 97. In her wonderful Ted Talk, Palmer discusses the social relations that are born through music and the essential nature of human connectivity as the base upon which to profit from any creative work. Amanda Palmer, ‘The Art of Asking’ (http://TED.com 2013) <http://www. ted.com/talks/amanda_palmer_the_art_of_asking> accessed 4 June 2014. © 2015 The Author

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problem emerges because you cannot manufacture a connection between a person and a culture industry product – it has to grow through the crowd. Conversely, runaway hits have been created overnight through the popularity generated by the people who viewed, listened or participated in a work of art that resonated with them. In other words, the crowd matters to the economic model even though it is ignored by it. The point of creative work is connectivity; it is to communicate with others. Without the audience, there is no possibility of success. Without the reader, the book fails. Without the listener, the music fails. Without the moviegoer, the movie fails. Fans connect with an artist through what the art says to them. Copyright law commodifies that connection but in doing so it disrupts and displaces the communicative aspect of art with consumption and the expectation of controlling each and every copy of a product. Instead, the act of art is in the reciprocity between artist and viewer – a different aspect of the extended mind at work. A future copyright law that reflects upon the role of the audience in making creative work popular will provide room for a more fluid and less risky way of sharing content. Instead of pursuing a criminalizing approach to copyright infringement, the law should reflect that without the crowd and the possibility of sharing creative works with others freely, the potential for creating the types of communities necessary for future creativity are lost. To adequately reflect that public interest, the law must more clearly allow for sharing to occur. 7 CONCLUSION A neuropolitical approach must be attuned to how one uses the brain to make political claims. However troublesome some may find the incorporation of neuroscientific findings into social theory, the social sciences should not ignore the insights of this research, nor should they take all claims at face value or use reductionist logic to trump other kinds of knowledge. As social theorist Nikolas Rose notes: There are good historical reasons why many in the social and human sciences have been highly critical of attempts to build a positive relation with the life sciences. But their dread of determinism, reductionism, and the dire ethical and socio-political consequences of locating humans among the animals, is now misplaced.98

This means that we need to consider the policy ramifications of the extended mind and neuroscience in our legal apparatus. Grounding the law in neuropolitics can serve as an opportunity to rethink the boundaries of creativity and originality. It offers ‘experiental entanglements’, an orientation and approach to how the neuro-biological and social sciences might find more productive modes of interaction. This methodological novelty advocated by Fitzgerald and Callard, comes in response to their own challenge: What if social scientists and humanists moved away from conceiving the domains of the neuroscientific and the experimental as the unchallenged province of the brain sciences – whose apparent territorial expansiveness they must welcome, ignore or repel? Could the neuroscientific experiment, as a rich and ambiguous way of producing different knowledges, help us to think some more creative and entangled ways of exploring these questions?99

98. Rose (n 9) 16. 99. Des Fitzgerald and Felicity Callard, ‘Social Science and Neuroscience beyond Interdisciplinarity: Experimental Entanglements’ [2014] Theory, Culture & Society 0263276414537319. © 2015 The Author

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By making some alternative futures thinkable, we have raised more questions than we have answered. But if we take an experimental sensibility to these potentially disruptive trends and scientific developments, we might just uncover some new approaches to how we govern creativity, invention, knowledge and sharing. As such, we will continue to address the questions raised in this article, moving from a survey of trends and possible futures (why this matters), to begin to more directly address and recommend responses (what should we do about it).

Š 2015 The Author

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