Stunlaw has become somewhat fascinated by a Hegelian idea of the arguments about creativity and ownership in intellectual property being a fetishisation. In other words, there is a creeping subjectification of objects and an objectification of subjects, through the association of the ownership (or creations) of intellectual property with its owner. Understanding subjectivity as ownership would result in a diminished conception of the individual as it fails to realise that property rights are only necessary to instantiate a legal system capable of recognising legal subjects. Human flourishing, which includes creativity and production, is reliant on intersubjective recognition, in other words, subjects interacting and able to perform rights, duties and obligations to each other (love, friendship, comradeship etc). Rather than a Kantian ‘Kingdom of Ends’ we instead become a kingdom of objects.
For Kant, an object is defined as something which cannot become a subject, in other words it has no will or subjectivity. Thus, only objects may be subject to property (both things and non-things) and gain their status through their identification as objects by subjects, which is necessarily intersubjective for Kant and Hegel. Therefore property is an intersubjective relationship mediated by property, in other words, each subject takes part in intersubjective moments in order to achieve subjectivity. Through each subject recognising each other in order to facilitate the transfer of objects by contract and exchange, the shared desire the exploit objects results in intersubjective recognition and not treating others as objects themselves (which would break the categorical imperative).
However, for Hegel it is the Abstract Right of property to establish the empty form of subjectivity, rather than personality itself which is actually added as ‘content’ by the spheres of morality and ethics. The subject is therefore empty and its essence is negativity. Property is therefore necessary to create the form of subjectivity by allowing a borderline created through the activity of intersubjective activity; it forms an empty and formal notion of subjectivity. In a similar way to the use of Lacan by his metaphor of the mask to explain subjectivity, Zizek argues ‘this nothingness behind the mask is the very absolute negativity…[which] is the subject par excellence, not a limited object opposed to the force of subjectivity!’ (Zizek 1994, The Metastasis of Enjoyment)
This legal subject is appearance with nothing behind it, or for Hegel, there is no noumenon underlying phenomenon. Property is thus a regime with the goal of creating subjectivity through intersubjective recognition. By the recognition of (1) possession, the ability to exclude others from its use, and thus to differentiate between subjects; (2) enjoyment, the ability to make use of the object as the subject wishes, the object is submitted to the will of the subject; and (3) alienation, the recognition by others that a specific object belongs to a specific subject (thus counter-intuitively only when it is taken away, through say selling it is it recognised as having belonged to that subject).
Thus, we should not look to property to understand the notion of creativity as it is only for the production of subjectivity as Abstract Right. It is therefore necessary but not sufficient for creativity to take place. However, it should be added that the level of property rights advocated by Hegel would be only those that allowed the generation of subjectivity as legal subject (which is a limited and preliminary form) and must not undermine the more advanced spheres of morality and ethics. This thin legal right is therefore a guarantee of subjectivity and forms the basis of intersubjective recognition as having the form of subjectivity.
Stunlaw will investigate creativity and Hegel further at a later date.