Money and Value: The Contribution of The Empire of Value to the Economics and Sociology of Conventions

André Orléan (2024)

In Rainer Diaz-Bone & Guillemette de Larquier (eds.), Handbook of economics and sociology of conventions. Cham: Springer, Online first

Abstract. Trying to understand what goods are worth of is at the very heart of economists’ thinking. The answer traditionally given to this question consists in identifying a certain substance, labor, or utility, as being at its origin. The approach of the economics and sociology of conventions takes a completely different path: value is a sui generis social construct, based on monetary convention. This represents a decisive break with traditional economic approaches. Money institutes value. The power invested in money stems from its collective recognition as a purchasing power. In this sense, like language, money is a community fact; it exists only in the context of its community of use, from which it derives its power. In so doing, the proposed construction is reminiscent of Boltanski and Thévenot’s polity model: money must be seen as the “higher common principle” through which everyone is brought into relationship with others. The desire for money, rather than the search for useful commodities, is the elementary force at the heart of the functioning of commodity production. From this perspective, money can be described as “sovereign”, and the monetary community can be compared to the political community. In both cases, one can see a set of originally separate individuals building, through their association, a collective body that transcends and protects them. The monetary institution, like the state, has the nature of a collective power that the association gives itself when it constitutes itself as a social body.

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“Vulnerable Societies: Risks and Responses“

At the upcoming congress “Vulnerable Societies: Risks and Responses“ of the Swiss Sociological Association at Basel (9-11 September 2024) two sessions are devoted to convention-theory based presentations.

Workshop: Crises, conflicts, catastrophes – on the relationship between “self-vulnerabilization” and collective capacities for action from a convention theory perspective
– Rainer Diaz-Bone (University of Lucerne/Switzerland): Sociology of conventions and self-vulnerabilization
– Ross Wallace/Kaya Schwemmlein/Susana Batel (University of Lisbon/Portugal): From place imaginaries to regimes of engagement with alternative energy futures: A report from a Portuguese “sacrifice zone”
– Valentin Rottensteiner (University of Duisburg-Essen/Germany): Conflicting worlds of production: How the strive for supply chain vulnerability creates conflict in the semiconductor industry
– Luca Perrig (University of St. Gallen/Switzerland): Enrolling hackers into a market for cyber-vulnerabilities

Workshop: The Pluralization of Social Knowledge Production and the Paradox of Vulnerability
– Frithjof Nungesser (University of Graz/Austria): Vulnerable Societies: Risks and Responses
– Valeska Cappel (University of Lucerne/Switzerland): Health-Apps: The pluralization of knowledge production and its consequences
– Guy Schwegler & Léonie Bisang (University of Lucerne/Switzerland): Is place the new social? Geodata and the encounter of data worlds
– Walter Bartl (University of Halle-Wittenberg/Germany): Worlds of scientific knowledge transfer

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Voluntary Sustainability Standards

Emmanuelle Cheyns (2024)

In Rainer Diaz-Bone & Guillemette de Larquier (eds.), Handbook of economics and sociology of conventions. Cham: Springer, Online first

Abstract. Growing social and ecological criticism of industrial agriculture in the early 2000s led to the increasingly frequent use of voluntary certification schemes to guarantee standardized sustainable or ecological production. Multi-stakeholder initiatives (MSIs) have emerged to set these voluntary standards of sustainability for sensitive commodities. They claim to guarantee properties that extend to fundamental rights at work, the protection of the environment and of peoples, human and land rights, and so on. They portray to give equal standing to all categories of stakeholders. Their horizontal forms of government however require very specific observations of contemporary, and sometimes invisible, forms of exercise of power. Economics and sociology of conventions (in short, EC/SC or convention theory) contributed to re-politicize these forms of coordination, by examining the politics behind the technical processes, the exclusion of some participants linked to the legitimized forms of evidence and knowledge, and the exclusion of certain valuations of human relationships with their environment. More recently, studies referring to the sociology of engagement emphasize how the liberal political model of the balance of interests shapes forms of participation, while excluding others. MSIs reduce pluralism to the expression of interests, making it difficult to engage in the justification regime (in qualifying the common good) and considering people’s attachments. Some works also underline the role that very local non-governmental organizations (NGOs) play in accommodating the voices of vulnerable communities in multi-stakeholder initiatives, by being close to them and by restoring their dignity through a work of care.

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Review of “L’économie est une science réflexive. Chômage, convention et capacité dans l’oeuvre de Robert Salais”, edited by Christian Bessy and Claude Didry (2022)

Héloïse Petit (2023)

Le mouvement social, 283, pp. 198-201

Premières lignes: “En 2019, deux journées d’étude étaient organisées en l’honneur de l’économiste Robert Salais, à l’occasion de son départ de l’École normale supérieure de Paris-Saclay (ex-Cachan). C’est alors que s’est dessiné le projet de cet ouvrage coordonné par Christian Bessy et Claude Didry. Ils y ont fait le choix de mettre en exergue l’« engagement réflexif » de Robert Salais comme chercheur, qu’ils présentent en écho à son « engagement » professionnel et politique en tant que statisticien à l’Insee en début de carrière.”

First lines: “In 2019, two study days were organized in honor of economist Robert Salais, on the occasion of his departure from the École normale supérieure de Paris-Saclay (ex-Cachan). It was then that the project for this book, coordinated by Christian Bessy and Claude Didry, took shape. They have chosen to highlight Robert Salais’s “reflexive commitment” as a researcher, which they present as an echo of his professional and political “commitment” as a statistician at INSEE at the start of his career.”

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Valuation and Enrichment

Christian Bessy (2024)

In Rainer Diaz-Bone & Guillemette de Larquier (eds.), Handbook of economics and sociology of conventions. Cham: Springer, Online first

Abstract. This contribution analyzes the way economics and sociology of conventions (EC/SC) deals with price formation in the light of the question of the plurality of forms of valuation, which lead to different processes of enrichment. In the first part, the way EC/SC has questioned the notion of value is presented, starting with the mimetic model of collective belief formation proposed by André Orléan, which he first applies to the genesis of money and then extends to other liquid and tradable assets on markets, which can lead to the appearance of speculative bubbles. This mimetic model is completed by taking into account all the mediations that allows to understand the diffusion of a form of valuation. The second part of the chapter is devoted to the analysis of the valuation of things, starting with research into the construction of relevant “grasps” (prises in French) in preparation for their valuation. Based on the work of Boltanski and Esquerre, the development presents structured forms of valuing things as sources of justification of price and shows their contribution to EC/SC in the analysis of market construction.

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Review of “Aux bons soins du capitalisme. Le coaching en entreprise” by, Scarlett Salman (2021)

Anne Jourdain (2022)

Socio-économie du travail, 12(2), pp. 188-194

Extrait: “Scarlett Salman a choisi un très bel objet pour analyser les transformations du capitalisme contemporain : le coaching en entreprise. En faisant des coachs en entreprise les parangons du « nouvel esprit du capitalisme » (Boltanski et Chiapello, 1999), elle met au jour deux évolutions caractéristiques des mondes du travail et de l’emploi au cours des dernières années. […]
Pour régler la question des temporalités du travail, le coaching propose, via divers outils et exercices, un surcroît de planification et d’organisation, ainsi qu’un travail d’optimisation de soi. Scarlett Salman montre que ces remèdes s’inspirent paradoxalement de l’ancienne cité « industrielle » (Boltanski et Thévenot, 1991) opposée à la valorisation du connexionnisme et de la fluidité de la cité « par projet » caractéristique du nouvel esprit du capitalisme (Boltanski et Chiapello,1999).” (p. 188, p.192)

Extract: “Scarlett Salman has chosen a very fine object to analyze the transformations of contemporary capitalism: corporate coaching. By making corporate coaches the paragons of the “new spirit of capitalism” (Boltanski and Chiapello, 1999), she brings to light two characteristic developments in the worlds of work and employment in recent years. […]
To address the issue of temporality in the workplace, coaching offers a range of tools and exercises to enhance planning and organization, as well as self-optimization. Scarlett Salman shows that these remedies are paradoxically inspired by the old “industrial” city (Boltanski and Thévenot, 1991), opposed to the valorization of connectionism and the fluidity of the “projective” city characteristic of the new spirit of capitalism (Boltanski and Chiapello, 1999).” (p. 188, p.192)

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Conventions for Green Investments: Stock Indices and Bond Ratings in the Age of Sustainable Finance

Tom Duterme (2024)

In Rainer Diaz-Bone & Guillemette de Larquier (eds.), Handbook of economics and sociology of conventions. Cham: Springer, Online first

Abstract. This chapter presents the work of economics and sociology of conventions that shed light on dynamics at the heart of contemporary capitalism. To act in situations of uncertainty, financial market participants do not base their investment decisions exclusively on the comments of opinion leaders. They also rely on indicators such as stock market indices and credit ratings. These indicators are supported by multiple measurement conventions (selection, weighting, revision techniques, etc.). Once stabilized, they generate conventions of interpretation that can be very powerful: through their influence on asset managers, the main stock market indices today determine the allocation of billions of dollars. The sustainable finance movement proposes to rethink the logic of financial decision-making. This implies, in particular, the emergence of new conventions of interpretation, based on new indicators, such as “ESG indices” and “green ratings”. The chapter first outlines the conventions governing decision-making in the stock market, then addresses the issues at stake in the bond market. In both cases, traditional indicators need to be adapted to the new criteria of sustainable finance.

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Verrechnung – Design – Kultivierung. Instrumentenkasten für die Gestaltung fairer Geschäftsmodelle durch Ko-Valuation

Calculation – Design – Cultivation. Toolbox for the design of fair business models through co-evaluation

Claude Draude, Simon Engert, Thomas Hess, Johannes Hirth, Viktoria Horn, Jonathan Kropf, Jörn Lamla, Gerd Stumme, Markus Uhlmann & Nina Zwingmann (2024)

White Paper. Kassel: University of Kassel. Open access

Abstract. Ausgehend von der Beobachtung, dass gegenwärtige Herausforderungen der Datenökonomie neben der angemessenen Verwendung von Daten auch Aspekte der gerechten Verteilung von Erlösen, die Manipulation durch Algorithmen oder die Beeinflussung der politischen Meinungsbildung durch Plattformen betreffen, lotet das vorliegende White Paper Möglichkeiten der fairen Gestaltung datenökonomischer Geschäftsmodelle aus. Die erarbeiteten Instrumente und Analysen zur Unterstützung einer fairen Geschäftsmodellgestaltung basieren auf Ergebnissen des vom BMBF geförderten Projekts „Faire digitale Dienste: Ko-Valuation in der Gestaltung datenökonomischer Geschäftsmodelle (FAIRDIENSTE)“. Um ein analytisch gehaltvolles Fairness-Verständnis zu entwickeln, das auch für die konkrete datenökonomische Gestaltungspraxis innovative und wirtschaftlich tragfähige Alternativen zu gegenwärtigen Geschäftsmodellen freizulegen vermag, wurden in FAIRDIENSTE verschiedene Ansätze der kooperativen Wertvermittlung (im Folgenden auch „Ko-Valuation“) erprobt, die wir als Verrechnung, Design und Kultivierung bezeichnen: Erstens wurde untersucht, inwiefern sich unterschiedliche Werte in eine ökonomische Sprache der Preise übersetzen und fair verrechnen lassen (Verrechnung). Zweitens wurde herausgearbeitet, wie Wert-konflikte durch technische und regulative Designs kanalisiert werden können (Design). Drittens wurde geprüft, inwiefern die öffentliche Aushandlung von Wertkonflikten, z.B. über Social-Media-Elemente, gefördert werden kann, um zu einer Kultur der Fairness unter den Nutzerinnen und Nutzern beizutragen (Kultivierung). Diese Perspektiven wurden anhand der Fairness-Herausforderungen des digitalen Journalismus geschärft und auf ihre Tragfähigkeit geprüft. Darüber hinaus beanspruchen die folgenden Überlegungen und Instrumente zur fairen Geschäfts-modellgestaltung aber auch auf andere gesellschaftliche Domänen anwendbar zu sein.

Abstract. Based on the observation that current challenges in the data economy concern not only the appropriate use of data but also aspects of the fair distribution of revenues, manipulation by algorithms or the influence of platforms on political opinion-forming, this white paper explores possibilities for the fair design of data-economic business models. The tools and analyses developed to support fair business model design are based on the results of the BMBF-funded project “Fair digital services: Co-evaluation in the design of data-economic business models (FAIRDIENSTE)”. In order to develop an analytically sound understanding of fairness that is also capable of uncovering innovative and economically viable alternatives to current business models for concrete data-economic design practice, FAIRDIENSTE tested various approaches to cooperative value mediation (hereinafter also referred to as “co-evaluation”), which we refer to as offsetting, design and cultivation: First, we investigated the extent to which different values can be translated into an economic language of prices and fairly offset (offsetting). Second, it was worked out how value conflicts can be channeled through technical and regulatory designs (design). Third, it was examined to what extent the public negotiation of value conflicts, e.g. via social media elements, can be promoted in order to contribute to a culture of fairness among users (cultivation). These perspectives were sharpened on the basis of the fairness challenges of digital journalism and tested for their viability. In addition, the following considerations and instruments for fair business model design also claim to be applicable to other social domains.

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A Convention Theorist Approach to Accounting

Eve Chiapello (2024)

In Rainer Diaz-Bone & Guillemette de Larquier (eds.), Handbook of economics and sociology of conventions. Cham: Springer, Online first

Abstract. The word accounting mainly refers to a particular form of quantification aimed at producing quantified images of the economic activity of various entities (companies, public bodies, nations, etc.) for reporting to various stakeholders. Accounting can therefore be studied as a quantification technique, applying the tools of the sociology of quantification. However, there are special features that make accounting more than just one quantification technique among many. The economics and sociology of conventions (EC/SC) provide important analytical tools to analyze its essential role in the economy.
Accounting is in fact a very important source of coordination conventions that frame our economic exchanges. It is also a major source of economic valuation, as it is able to state economic worth and profits. This chapter highlights the different aspects that shape accounting practices and the power struggles around accounting figures. It also explains how these aspects have evolved historically in order to build the necessary trust in numbers that makes them useful: accounting conventions have been gradually regulated, and so has the accounting profession. These characteristics of accounting make it a very interesting vector for addressing both the microeconomic issues of coordination between economic agents and the particular economic institutions that shape economic regimes. Accounting conventions are indicators of what and who count in a political economy. It is then not surprising that reform projects are targeting accounting conventions in order to change the way the economy works.

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¿Qué medimos cuando medimos democracia?: convenciones, espacios de lucha e implicaciones

What do we measure when we measure democracy?: conventions, spaces of struggle, and implications

Jesús Guzmán Castillo (2024)

Revista de Derecho Electoral, 37, pp. 101-115. Open access

Resumen. En los últimos años la literatura y las discusiones en la ciencia política giran en torno a la crisis de la democracia y a los retrocesos democráticos que viven los distintos países en diversas regiones, tanto en democracias nuevas como en aquellas consolidadas. Mucho de este debate surge de las mediciones que se hacen sobre la calidad de la democracia, y los resultados de estas reflejan cómo cada vez menos personas viven en democracia. Sin embargo, poco se ha reflexionado sobre el origen de estas mediciones y los impactos que pueden tener. En este artículo se discute sobre el proceso de medición de la democracia, partiendo del hecho de que es un objeto cuya conceptualización es un campo de disputa y que el proceso de medición parte de una serie de decisiones subjetivas que provienen de convenciones aceptadas entre comunidades científicas, pero también políticas y económicas.

Abstract. In recent years, the literature and discussions in political science have revolved around the crisis of democracy and the democratic setbacks experienced by different countries in various regions, both in new democracies and in consolidated ones. Much of this debate stems from the measurements that are made about the quality of democracy, and the results of these reflect how fewer and fewer people live in a democracy. However, little thought has been given to the origin of these measurements, and the impacts they may have. This article discusses the process of measuring democracy, based on the fact that it is an object whose conceptualization is a field of dispute, and that the measurement process is based on a series of subjective decisions that come from conventions accepted among scientific communities, but also political and economic.

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Understanding Plurality, Engagement, and Change in Vocational Education and Training through French Pragmatic Theory

Eli Smeplass, Jan Frode Haugseth & Johannes K. Schmees (2023)

Berufs- und Wirtschaftspädagogik Online, Spezial 19, pp. 1-20. Open access

Abstract. This paper argues for the use of French pragmatic theory for theorising about vocational education and training (VET) through a focus on understanding plurality, human engagement, and change within VET organisations and in various training situations and professions. Drawing upon the influential works of Luc Boltanski and Laurent Thévenot, we propose that French pragmatist theory offers a valuable framework for understanding the complex dynamics of VET systems and practices. French pragmatic theory, as an analytical tool, sheds light on the existence of diverse perspectives and conflicting rationales in education as well as in work life. Additionally, Thévenot’s engagement theory reveals the tensions between forms of attachment and the moral evaluations in humans’ interactions with VET systems. We argue that utilising these theoretical perspectives can provide a richer understanding of social dynamics, conflicting values, and justifications within the VET context.

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The Politics of Calculation in Contemporary Peruvian Amazonia

Eduardo Romero Dianderas (2024)

Cultural Anthropology, 39(1), pp. 64-90. Open access

Abstract. Recent years have witnessed the advancement of several technocratic interventions in the context of the global environmental crisis that aim to calculate and track different objects of environmental concern at various scales. In this article, I focus on how such technocratic interventions are transforming the processes by which tropical timber is technically rendered into calculational abstractions known as “volumes” in Peru’s tropical timber supply chains. Drawing on twenty-four months of fieldwork following the activities of loggers, timber industrialists, and state technocrats across Peru’s Amazonian region of Loreto, I show how calculational abstractions can never fully circumvent the frictions of power, history, and bodily experience. Rather, technocratic interventions aiming to standardize tropical timber-calculation procedures ultimately transform volumes into fertile ethnographic terrains from which to appreciate how competing forms of political imagination intersect and collide with each other as Amazonia enters the age of climate change and biodiversity loss.

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“Expropriation by Law”: On the Financialization of Intellectual Property Rights and the Effects on Labor, Creativity and Value

Interview with Christian Bessy

By Simon Schrör (Weizenbaum Institute, Berlin)

Christian Bessy is CNRS-researcher at the Ecole normale supérieure (ENS) at Paris-Saclay and works at the laboratory “Institutions and historical dynamics of economy and Society” (Institutions et dynamiques historiques de l’économie et de la société, IDHE.S), of which he is assistant director.

Christian Bessy

He belongs to the French approach of the economics of conventions (in short EC) and has written many articles and five books: “Les licenciements économiques. Entre la loi et le marché” (1993), “Experts et faussaires. Pour une sociologie de la perception” (together with Francis Chateauraynaud, 1995), “La contractualisation de la relation de travail” (2007), “L’organisation des activités des avocats” (2015), and “L’expropriation par le droit. Propriété intellectuelle, valeur, travail“ (2022).

Bessy also has co-edited five books : “Les intermédiaires du marché du travail” (together with François Eymard-Duvernay 1997), “Des marchés du travail équitables? Approche comparative France/Royaume-Uni” (together with François Eymard-Duvernay, Guillemette de Larquier and Emmanuelle Marchal, 2001) and “Droit et régulations des activités économiques et institutionalistes” (together with Thierry Delpeuch and Jérôme Pelisse, 2011), “Les biens communs en perspectives” (together with Michel Margairaz, 2021), “L’économie est une science réflexive (in tribute to Robert Salais)” (together with Claude Didry, 2023).

The recent publication of his latest book, “Expropriation by Law. Intellectual Property, Value and Labor” is the occasion for this interview about his work and the long-term developments in his field of research. The interview was conducted via email exchange between January and February 2024.

SSc:  Your new book is entitled “Expropriation by Law”. How did you get the idea to write this book?

CB:   This book is the translation of my French 2022 book “L’expropriation par le droit” with a few additions to make it readable for an international audience. It represents over 30 years of research, which began with the study of counterfeiting cases with my sociologist colleague Francis Chateauraynaud (EHESS) from the point of view of expertise capacities that these affairs presuppose (Bessy and Chateauraynaud, 1995). Afterward, I delved deeper by studying the collective management of intellectual property rights, in short IPRs (Brousseau and Bessy, 2006), particularly through the practices of licensing technology agreements (Bessy and Brousseau, 1998). My work in the early 2010s on the role of lawyers in the definition of law and the emergence of highly profitable law firms specializing in IPRs led me to question the way in which they participated in their financial valorization, constructing them as a new asset class that could be traded on a market. The rampant financialization of IPR in the contemporary era will have consequences for the allocation of these rights, generating increasing litigation, particularly within companies. It is this chain of events that my book seeks to analyze, using a database of court cases and interviews with legal professionals in the field. It’s a project that I had put off for a while, and it was the period of confinement that gave me the availability I needed to find this thread of “expropriation by law”, by cross-referencing virtually all my previous research.

SSc: You mentioned the rampant financialization IPR and brought up the role of actors like lawyers. Looking back on the developments in the IP-driven sector over the last 30 years. How was it possible to implement and stabilize such changes?

CB:   Our analytical framework shows different conventions for valorization IPRs and their synergy over time, making patents into negotiable assets. The market for patents nonetheless is not developing on a large scale and testifies to the failure of modern finance, as we have shown using the example of Silicon Valley and the key role of new patent intermediaries who have allied themselves with financiers. Nonetheless, it’s a market that’s developing with the strengthening and development of IPR on other objects, as well as companies’ open innovation strategies. This financialization of IPR can be explained by institutional factors and corporate strategies, particularly in the new information and communication technologies.
But the whole thesis of this book is that, far from playing a passive role, IP attorneys play a decisive role in shaping policy and its globalization by contributing to strong inequalities between firms, between countries and between workers. Katherina Pistor (2019) has clearly highlighted how global lawyers, with their codifying engineering of know-how, create exclusive, sustainable, universal, and convertible capital, to the benefit of companies and often against nation states. In this way, they participate in a veritable global legal industry, which is highly prized by investment funds. The success of this IP market is based more on the collective belief in the value of IPRs than on their intrinsic qualities.

SSc: Before talking more about the role of these intermediaries, can you describe the sectors and the kinds of IPs, that are particularly relevant nowadays?

CB:   In the book, we use patent law as a starting point, since this is the field we began to investigate and in which financialization began very early on, calling into question the way patent offices operate. Although the focus is on patent rights, our analysis applies to all IPRs, in particular to copyright, the economic stakes of which have become increasingly important with the development of cultural industries following an entrepreneurial logic and predatory behavior. Moreover, many objects that were protected by other IPRs, such as software, perfumes, or recipes, are now protected, under certain conditions, by the patent. In addition, the criteria of patentability, such as novelty and inventiveness, are penetrating the jurisprudence concerning copyright, leading to the introduction of an economic logic that is more and more prevalent in IPRs. Finally, lawyers and counsels in different areas of IP law are grouping together in the same firms, with the added bonus of their concentration within the same geographical jurisdiction that deals with litigation in this area. Finally, European law is evolving in an identical way on all IPRs, with the emergence of an intellectual property market that is more and more attractive to investors that finance law firms and IP brokers.

SSc: In “Expropriation by Law”, so-called legal intermediaries play a central role – you already mentioned IP lawyers. Can you give a brief overview of these intermediaries and describe why they are so important?

CB: We distinguish between different legal intermediaries and analyze their transformation, in particular through the evolution of IPR valuation and attribution conventions that they help to define and disseminate. We mention the decisive role played by patent office examiners and judges in defining patentability criteria in each technological field.
But our focus is on patent attorneys, who play an important mediation role in the institutionalization of rights. They connect different levels and tailor legal statements to the specific needs of industries, particularly in terms of patentability and the appropriation of knowledge. Mobilizing both their legal skills and their knowledge of markets, these legal intermediaries develop models of compliance with the law that minimize companies’ risk of litigation. Like any legal intermediary (Bessy et al., 2011), they can also fulfill a purely strategic role by taking advantage of a system flaw, which subsequently raises the question of their regulation. Nevertheless, they are able to capture this regulation by lobbying, particularly the global lawyers at European level. The power of legal intermediaries contributes to renewing the vision of capitalist development by raising this group of actors to the level of financiers, with whom they maintain privileged relations, and of innovative entrepreneurs, whom they confirm in their superior status.

SSc: This sounds like lawyers – with their structural connection to financiers – utilize their legal strategies to also impact the value of assets. How are the construction of the value of things and their legal assessment entangled?

CB:  I think we need to distinguish between two levels. At the global level, how IP lawyers have contributed to making IPRs tradable assets on a market through a series of “investments in forms” (Thévenot, 2024), and how in a particular case they will fight to defend the value of a title or the recognition of a particular right, such as the fact that know-how will be protected with reference to a patent or copyright, thus aiming to increase its economic value.
The emphasis in this book is first on their contribution to the social construction of the value of IPRs, even if an individual intellectual property title may have no value at all. The central idea we combat is that this economic value, the price, would be determined on a market with reference to “fundamentals”. Yet despite the normative proposals of certain economists to create a market for patents, attempts to organize auctions, for example, have ended in failure. The market for patents only operates on a small scale, and essentially by mutual agreement. Yet IP lawyers, as a professional group, have done everything upstream to reduce uncertainty about the legal value of titles, as illustrated in recent years by the construction of a European patent law by these lawyers and patent office judges. In particular, the creation of a specialized patent court (European unified jurisdiction) similar to the one in the United States (Chapter 5 of the book).

SSc: Even if, or maybe because, the market for patents is not functional, it has created a number of new intermediaries that exploit the system. Especially when it comes to holders of IP-Portfolios, where you distinguish between defensive and offensive patent aggregators. What makes the latter offensive, or even aggressive?

CB:   These new intermediaries acquire patent portfolios either to secure them or, on the contrary, to search for infringements. Based on the American case, an author such as Allen Wang (2010) distinguishes between “defensive patent aggregators,” who license their patent portfolios in complete security to subscribers, and “offensive patent aggregators,” who also seek to provoke infringement situations in order to make money, like the famous patent trolls. It is, in fact, to counteract this strategic use of the patent system that the first ones appeared, thus increasing the potential of the IP market. These defensive patent aggregators are similar to the intermediary organizations that collectively manage patent licenses, since they deal with the use authorization, control use of the license, the collection of royalties, and the settlement of disputes. The difference lies in the fact that they are real companies driven by a profit logic and not professional associations based on the pooling of resources, as are societies of authors (Brousseau and Bessy, 2006).
So, these new “players” pose a problem of competition with traditional IP intermediaries. They pursue private goals that do not contribute to the advancement of public knowledge. If some of them contribute to the fluidity of the market for patented technologies, the offensive aggregators are more at odds with the objective of the patent system, which is to encourage innovation.

SSc: You address the tension between different justifications of intellectual property. Private pursuit of profit versus public knowledge and resources. Are there actors or intermediaries in this system who defend and uphold the latter, civic idea of IP?

CB:   All the legal intermediaries we have analyzed (patent attorneys, examiners, and office judges) do not always make strategic use of the law, and therefore converge on what makes a “good patent” and promote the construction of a public domain. Schematically, they seek to ensure that the allocation of IPRs is proportional to investment in creative activities. Or they promote the creation of knowledge commons, or combat inequalities in the attribution of IPRs, particularly within companies or in asymmetrical subcontracting relationships.

SSc: To conclude the area of financialization and legal intermediaries: What role has the rise of tech companies like Google, Apple, or Meta played in the global IP system? These companies have enormous financial resources and concentrate a large potential for innovation.

CB:   The economists Cecilia Rikap and Bengt-Åke Lundvall (2020) have developed the notion of a “Corporate Innovative System” to account for the predation of knowledge by multinational companies, such as the GAFAs, on the ecosystem of SMEs that they dominate and that has gradually aggregated to initially form a global knowledge common. The success of these “big tech” companies is based on IPR and strategic acquisitions, as Neil Fligstein (2001) has also highlighted. These big tech companies share some projects with the open-source community by placing them on their development platform and taking ownership of some of the developments that are integrated into complex systems. Such an asymmetry of power exists not only in the pharmaceutical sector, but also, more generally, within each country, between large companies and SMEs rooted in territories and lacking the legal resources to protect their expertise.

SSc: Now the financialization is by far not the only area, where IPRs have an impact. What about the people who create the basis for what is protected in the end? E.g. the creatives, designers or developers. How is their situation affected?

CB:   The financialization of IPRs and their exchange on a market presupposes that their holders are not constrained by forms of co-ownership with those who are at the basis of the creation of these intangible assets, which presupposes that innovators or creators cede their rights, sometimes with monetary compensation, which they sometimes consider insufficient. This form of expropriation by law is then a source of disputes. It is the emergence and resolution of these disputes that we analyzed in the last two chapters 6 and 7 of the book.

SSc:  Chapter 6 is primarily concerned with court disputes over these issues of financial participation and expropriation. What did you find out about the system of court disputes on remuneration issues?

CB:   I long wanted to work on disputes over employee inventions, because I had learned that there was a National Conciliation Commission (Commission Nationale des Inventeurs Salariés in French, CNIS) that could help employees avoid going to court. Modeled on the German commission, it was created in France in 1978 to accompany the French politics of patent. It is made up of non-professional judges who represent different sectors of activity, and who therefore judge rather fairly (en équité in French), according to the conventions specific to the world of production.
We wanted to explore the functioning of this conciliation body from the perspective of the search for “good law” (bon droit in French) as a field of normativity that is an intermediary between positive law and practices within the company (Cottereau, 2002). This institution can be considered as a legal intermediary, articulating different sources of normativity and highlighting the importance of professional circles in the definition of work and employment rules. It allows for a final settlement of 80% of disputes. However, for reasons of confidentiality, we do not have access to the conciliation decisions of this commission. We have therefore fallen back on judicial decisions, which are more imbued with formalism. The fact remains that they are sufficiently detailed to fully understand the nature of the disputes and the characteristics of the parties.SSc:  Analyzing this empirically on a broad scale is a major undertaking. Can you elaborate a little on the methodological challenges that arose with the study?

CB:   The construction of our basis for judicial decisions was not easy because certain decisions are unique and pose a problem of equivalence (n=123, 2000-2018). In a first stage of exploitation of this database, we proceeded to a rather simple statistical coding (about 40 variables): the protagonists and the nature of the disputes, the characteristics of the companies and of the salaried inventors, the amounts of the remunerations or more generally of the compensations. The main objective is not to go back over the judgment criteria used by the judges, but to link the nature of the disputes to the characteristics of the actors involved in these disputes.
From these variables, we have built a statistical typology of cases around two axes. The first axis would reflect the degree of objectification of inventive missions and of the remuneration policy. The chances that the employee inventor will succeed in some of his claims before the court increase along this axis. The second axis opposes inventors according to their socio-professional category, in particular “engineers” in consulting and R&D activities, to “intermediate professions” working in consumer goods or other industries. Each class therefore refers to a world of production.
Thus, we were able to identify an important class of decisions where the dispute concerns the insufficiency of the additional remuneration, as illustrated by the cases of the chemical and pharmaceutical industries. Nevertheless, our typology of judgments reveals another important type of litigation, in particular in innovative SMEs where IP policies are less objectified and where the creators–founders of the start-up seek to fully appropriate the inventions.

SSc:  The analysis of the legal disputes reveals some of the disputes that creative workers have with their employers over the appropriation and ownership of creative results. What other forms and fields of conflict exist here?

CB:   In the last chapter of our work, we sought to give more extension to the processes of expropriation of workers’ know-how. In particular, by emphasizing the decline in forms of co-ownership of intangible assets, and therefore of “intellectual commons”. This decline is linked to the financialization of these assets and the development of a platform economy, modifying the forms of work organization. More generally, we question the attribution of IPR between those who design new products and those who produce them, knowing that traditionally, rights are more attributed to the former than to the latter. Following this perspective, we have distinguished different conventions for IPR attributions according to the worlds of production (Storper and Salais, 1997). In the so-called creative industries, we are witnessing a form of dualization between designers who are considered as artists giving a certain aura to things and, at the other end, forms of self-exploitation based on free work.

SSc:  Looking back on the entire book and its findings: How would you summarize what you have discovered about the interplay between labor, value, and intellectual property in general?

CB:   The challenge in this book has been to articulate two projects that I had initially conceived separately. A reflection on what makes patents valuable and the role of intermediaries in this valuation process. A study that I had put off for a long time on disputes regarding employee invention. It follows on from my previous work on the contractualization of the employment relationship (Bessy 2007), which began with an analysis of institutional transformations concerning the termination of the employment contract (Bessy 1993).
There was indeed the idea that the value achieved by certain patents could lead inventors to have a piece of the pie, but it was necessary to highlight a whole series of mediations to account for the two dimensions. In particular, we have shown the role played by patent attorneys in the legal security of titles and the limitation of forms of co-ownership. It is also important to underline their rather individualistic conception of innovation, particularly when they magnify the start-up model, which refers in a certain way to the initial revolutionary intellectual right based on individual genius.

SSc:  You mentioned that the book is also a review and summary of over thirty years of research into intellectual property. As retrospectives always define a starting point for something new: What plans do you have for further research and what unanswered questions have you identified?

CB:   We will continue to analyze the development of the intellectual property market, particularly through its extension to new objects (AI, genome) developed by start-ups. The idea would be to identify “varieties of capitalism” in this area and the role played by lawyers. But we began to explore the issue of IPRs in the world of design in which they play, as you know, a more and more important role (Bessy and Schrör, 2024). The recent trend is for designers’ lawyers to defend their work by relying on copyright, in particular by proposing narratives that mobilize the ‘collection form’ of valuing things (Boltanski and Esquerre, 2020). The development of geographical indications also goes in this valuation form. Another current research is to focus on the development of copyright (droit d’auteur in French) in terms of moral rights concerning respect for the integrity of works. A particular question is whether this right of preservation diminishes or not with different generations of rights holders.

The Book “Expropriation by Law. Intellectual Property, Value and Labor” has been published in February 2024 at Edward Elgar (Cheltenham, UK). 204 pages, ISBN: 9781035326143, DOI:  10.4337/9781035326150

 

 

 

 

 

 

 

References

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Environmental governance through metrics: guest introduction

Allison Loconto, Scott Prudham & StevenWolf (2024)

Science as Culture, 33(1), pp. 1-15

Extract: “The four articles collected in this special issue also describe processes of quantification that establish new agencements to govern the environment, with different consequences for human and non-human actors. To advance discussions about the performative effects of governing the environment through metrics, we build upon Desroisières’ two dimensions of quantification: the establishment of conventions, made up of creative value judgements about what can be in the world; and measurement, the rule-based implementation of these conventions (Desrosières, 2009; Desrosières, 2015). As we know from Wittgenstein, the application of the rule becomes part of the rule itself (Biletzki and Matar, 2018).” (p. 4)

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The Global Politics of Census Taking. Quantifying Populations, Institutional Autonomy, Innovation

Walter Bartl, Christian Suter & Alberto Veira-Ramos (eds.)(2024)

London: Routledge. Open access

About this book: This book examines in detail the state of the art on census taking to spark a more vivid debate on what some may see as a rather technical – and hence uncontroversial – field of inquiry.
Against the backdrop of controversy between instrumental and performative theoretical stances towards census taking, it analyses the historical trajectories and political implications of seemingly technical decisions made during the quantification process by focusing on the 2020 round of censuses, which have been particularly revealing as activities have been affected by the ongoing COVID-19 pandemic and the ensuing containment policies. Through case studies of countries from the Global North and the Global South, the book highlights the consequences of, and innovations and challenges in census taking focusing on three particular areas of concern – the politics of the census in terms of identity politics; the institutional autonomy of the census; and significant and transformative methodological innovations.
This book will be of key interest to scholars, students and practitioners of quantification studies, and social demography and more broadly to public policy, governance, comparative politics and the broader social sciences.

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