Karl Renner, the Austro-Marxist and early contributor to sociology of law who also became the first prime minister of the young Austrian nation, focused on the role of property and contract in changing Western European societies. In the early twentieth century, he used the rather fierce metaphor of Chronos to describe the progression of property by stating that “[t]he evolution of property does not rest, it is like a Chronos who devours—other people's children” (Renner 2010/1949: 110).1 In this sense, I will also focus on the notion of property and its shifting claims over time. Influenced by the Marxist theories of his time, Karl Renner's theoretical examination includes a conception of society as a dialectics between a legal superstructure and an economic base (Grace & Wilkinson 1978: 94). This means that Renner relies on a Marxist perspective to construct a sociological theory of law (Treviño 2008: 119–27). Of key interest in Renner's work is the analytical separation between legal institutions from their social functions—that is, in the words of Kahn-Freund (1949/2010: 3), “the factual results of their application.” Renner stresses that it is not law that drives the changes in its substratum when he argues, for example, that such as “economic change does not immediately and automatically bring about changes in the law” (Renner 2010/1949: 252).
Renner and (Intellectual) Property
Specifically, this article deals with copyright regulation meeting the rapid societal changes associated with digitization as a case of an unresting (intellectual) property making colonizing claims over broadened fields of digital content. As mentioned, I do so by reinterpreting Karl Renner's classical texts in the light of contemporary cognitive theory of conceptual metaphors and embodiment. First, I ask to what extent Karl Renner's theories on property can be used for an analysis of contemporary intellectual property (IP); second, I ask in what sense IP is conceptually expanding as a concept in a digital context, displaying a need for conceptual metaphor theory for its analysis, and in what way such an analysis may be combined with and aided by Renner's theories; third, I ask in what way the digital content is conceptualized as material and tangible objects and what this means; and fourth, I ask, following Renner's argument on the institutions of control that follow property, to what extent this aspect of control is relevant also in the case of intellectual property in a digital society. The fourth point may very well be regarded as the most important here, in terms of how copyright and IP in many ways have been accentuated in the transition from regulating physical phenomena to also regulating digital dittos. As I explain further below, it is crucial for the argument of this article to see how the digital environment in combination with the aspects of control that IP supports contributes, in fact, to collapsing traditionally supported distinctions between gaining access to a work, using it, and reproducing or copying it. Whether it relates to measurement of reading, shrewdly formulated as “Your E-book is Reading You” in a Wall Street Journal article by Alter (July 2012) or conceptualized in terms of Digital Rights Management (DRM) and “copy-locks,” or seen in the architectural settings of streaming services like Spotify, the development remains clear: copyright's claim is expanding in the digital domain. Although there are exciting methodological possibilities to be derived from, for example, the possible measurement of people's media use, an established tool in the “data-driven” decision-making processes of internet-based ventures, and controlling the uses of digital artifacts, the focus here is on the aspect of control that this entails, which follows from a property-like copyright regulation operating in a relatively new dematerialized environment.
Although there has not been a continuously strong use or reinterpretation of Karl Renner's texts over the more than a hundred years since his first works were published, there have been revivals every now and then, particularly when Die Rechtsinstitute des Privatrechts und ihre soziale Funktion was translated into English in 1949 with an introduction by Kahn-Freund (Kann 1951; Laski 1950) and in the 1970s when a new edition was published (Auerbach 1980; Bottomore & Goode 1978; Kinsey 1983; MacDonald 1977; Robson 1977; Shannon 1977; cf Treviño 2010). Renner's ideas have also been cited in relation to participation and property rights (Leader 1999) and, perhaps, particularly in relation to sociolegal research on land law (Whitehouse 2010). In 1977, Peter Robson wrote a well-informed article on Renner stating that “the ideas of Renner are still apt today in examining property and society. What has occurred has been changes in the appearance of property, but consistency in its function as an institution of domination and control” (Robson 1977: 221). With regards to property, contracts, and issues of control connected to it as a central function in society, it is rather uncomplicated to find a contemporary application for at least parts of Renner's work. In line with this, the debate on contemporary IP, particularly from an American perspective, seems to be increasingly focused on claims from the copyright industry that IP should become more property-like. This also follows on a broad trend related to increasingly consolidate copyright in a digital society to be an “institution of domination and control,” which I will return to later.
When Karl Renner provided us with the classical description of how property had been transformed over a period of time in its social function, but not in its form, the role of property in a digitized world was, of course, not even imaginable. However, Renner's description is relevant for such an analysis, too. There are relevant parallels in contemporary society, I argue, to how “[c]hanges in society had successfully altered the form as well as the social function of property,” as Robson (1977: 221) puts it. In addition, and as a driver for this article, I see a need for chiseling out more detail with the tools Renner provided us, and I therefore propose a complementary use of cognitive theory on conceptual metaphors in order to enable a more detailed study of the legal conceptual change at hand; when the letter of the law does not change, but its meaning does, this may be assessed by its dependence on context and societal relevance for its interpretation.
From a sociolegal perspective, as stated by many before me, it is of key importance to study and theorize changes in the meaning of legal language over time. This article demonstrates this dependency from the perspectives of language, cognitive science and conceptual change. The American lawyer David Mellinkoff writes that “[t]he law is a profession of words,” emphasizing the absolutely central role of language in law (Mellinkoff 1963: vi). This highlights the importance of understanding how language, meaning, and mind are constructed and also linked to the broader study of law, legislative change, and legal argument in relation to a social or societal context (cf Amsterdam & Bruner 2000). There are a number of studies that touch on cognitive theory in order to understand and analyze the legal fields, to explore, for example, how courts employ selective literalism (Tiersma & Solan 2004), or how even blind people, in a conceptual sense, “see race” because the understanding of race stems from interpersonal and institutional socializations, and not a visual essence (Obasogie 2010).
The development of law, as stated by several legal scholars, is generally conservative and therefore often retrospective. Embedded values are long lasting and consequent upon the main principle of predictability (Aubert 1989: 62; Luhmann 1972: 31ff; Peczenik 1995: 89–90). This has been described and analyzed in terms of the “path dependence” of law (Larsson 2011a, 2011c). Legal reasoning has its method in which categorization is a key and inertia a virtue. As Steven Winter concludes:
… the structure of legal reasoning is essentially the same: it strives to reduce a complex problem to a policy, principle, propositional rule, or some other set of necessary and sufficient criteria. In theory, these definitional criteria will allow professionals to delineate legal categories with greater precision, draw appropriate distinctions, and then make correct decisions. (Winter 2007: 870)
However, as both Winter (2001, 2007) and Johnson (2007) have pointed out, this approach makes it hard to explain how law changes and adapts to new social circumstances. These issues have been addressed continually for many decades. Hohfeld, for example, complained that: “Much of the difficulty, as regards legal terminology, arises from the fact that many of our words were originally applicable only to physical things; so that their use in connection with legal relations is, strictly speaking, figurative or fictional” (Hohfeld 1913: 24). This addresses the difficulties of shaping and creating the language-based legal “tool” that should on the one hand be predictable and reliable, and on the other hand is constantly reinterpreted in a changing societal context.
Karl Renner analyzed the relationship between legal concepts of property and contract and patterns of social change in the development of capitalism in Western Societies. His most important contribution was the aforementioned The Institutions of Private Law and Their Social Functions (Renner 2010/1949), first released in German in 1904 and translated into English by A. Schwarzschild, with an introduction and extensive comments by Otto Kahn-Freund, in 1949. Here, Renner argues that law can adapt to changed social circumstances without necessarily changing its form or structure. In the words of Cotterrell, Renner argues that “[l]egal concepts can remain in the same form while fundamentally changing their social functions” (Cotterrell 1992: 49), which has been labeled by Kahn-Freund as the “functional transformation of the untransformed norm” (Renner 2010/1949: 6). Renner concludes that the legal “substratum” of property—“the social substructure”—had been completely revolutionized during the nineteenth century in Western Europe. It is against this fact that the legal setting must be displayed:
Let us begin with this cardinal fact: the law of property has not changed. The Code Civil, the Prussian Land Law, the Austrian Civil Code and so forth—all these codifications that record the victory of the property norm, contain norms that are still valid today. The property norms of the new German code are even somewhat stricter than those of the earlier codifications. There has been no change of norms. (Renner 2010/1949: 87)
The startling fact is that this occurs during a time of enormous economic and societal change, not the least due to industrialization. How is it that the legal form can remain constant and yet regulate a society that is fundamentally different? Renner's analysis is relevant not only for his particular case, but for legal conceptual development at large—perhaps, especially in relation to when society undergoes rapid transformation. A year after the English translation of Renner's book was published, Harold J. Laski reviewed it in a law journal (Laski 1950). In addition to celebrating O. Kahn-Freund's commentary, Laski addresses the change in legal norms in terms of their “functional content” and “inner essence”:
Since society is always dynamic, behind norms which often seem timeless there is infiltrated into the formal appearance a functional content which alters their inner essence at every turn of the road. (Laski 1950: 390)
Without more thoroughly focusing on the ontological issues that arise regarding the inner essence of legal norms (which is done by Svensson 2013 and Svensson & Larsson 2012), our focus here lies in what we may see from a cognitive perspective, how changes in the language-based “substratum” of law can be addressed. Laski explains, based on Renner's work, that “legal norms are only apparently unchanged; at some time, they must either be interpreted in terms of purposes their makers never foresaw, still less desired, or they are overturned by those who can no longer accept what the original purposes do to the citizens of a society” (Laski 1950: 390; see also Aubert 1972: 87f; MacDonald 1977; Shannon, 1977).
Because of the fact that “law can adapt to change in ways that may not be readily apparent on the face of legal doctrine” (Cotterrell 1992: 49), the proposed approach allows for a detailed study of the legal surface structures in explicit linguistic forms of expression that have the potential to reveal the underlying thought structures that govern a particular legal construction. It may thus show change in meaning where the specific concepts remain the same (Larsson 2011b: 131–32, 2013b). This, in my view, opens up paths toward a complementary, theoretical contribution drawn from findings in cognitive theory and, in particular, conceptual metaphor theory. The main point of connecting metaphor theory to legal analysis is to understand how the linguistic expressions and metaphors, are linked with underlying conceptions and how our thinking thereby is framed and controlled by the metaphors that have become prevalent and which constrain or steer mental processes (Johnson 2007; Winter 2001). Here I thus argue that cognitive linguistics is significant to studies of the law. The important findings not only take into account the fact that metaphors play a much more fundamental role in mind and language than is traditionally acknowledged in theories of law (Johnson 2007), but also concerns the framing aspects of conceptions and metaphors (Lakoff 2005; Larsson 2011b). This is further emphasized by the process of embodiment of metaphors, and, hence, law (Larsson 2013a). In simple terms, law is in need of reification in order to be talked and thought about. This process, therefore, is of great interest to anyone concerned with understanding law's place in society as a cognitive, lingual and cultural artifact.
The P in IP
From a cognitive theory perspective, I focus on the notion that legal norms only appear to be unchanged. In fact, their meaning may be in constant flux, but I contend that these changes need not be of a conscious character. Rather, we tend to live with the context that is changing the meaning. This context includes social norms, technological development, and changes in social structures in general that create a social and cognitive reinterpretation of law (Larsson 2013c). This article, therefore, specifically deals with copyright regulation meeting the rapid societal changes associated with digitization. I will first address the contemporary trend of treating or arguing for IP as property and then continue to contrast this with a historical perspective.
In most jurisdictions, copyright owners have the exclusive right to exercise control over copying and other exploitation of their works. International treaties and directives focus on the control over reproduction of the protected creation. For instance, the Berne convention states that authors of literary and artistic works shall have “the exclusive right of authorising the reproduction” (Article 9); the Infosoc Directive speaks of “the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction” (Article 2); and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) states “the right to authorize or prohibit the direct or indirect reproduction” (Art 14, section 2). In 1982, the famous pro-copyright lobbyist and Motion Picture Association of America president Jack Valenti argued in the U.S. Congress for equating “creative property owners” with other property owners (Lessig 2004: 116f). Already, the use of the term “creative property” is a first step toward framing intellectual rights into a tangible goods property right. This is a mere example of how the pro-copyright industry makes property-based claims regarding the intangible goods that are being copied in the digital sphere because they are beneficial to this industry. To argue for equating copying with theft is yet another, albeit simple, way to colonize the digital phenomena with conceptions based in a physical environment. Herman (2008) shows that the notion of (tangible) property dominates the general mental image of copyright, and therefore much of the debate, resulting in a sort of pedagogical and rhetorical advantage (Yar 2008) for those who propagate the conceptual links to the ownership of physical things. It then becomes an educational task of “teaching” IP when copyright, in fact, to some extent seems dysfunctional in a digital environment (Larsson 2011b; Larsson & Svensson 2010; Svensson & Larsson 2012). This is neither a completely external nor internal question for the law. For example, the statutory definition of copyright in the U.K. Copyright, Patent and Designs Act 1988, section 1, in fact, states that “Copyright is a property right.”
Jakobsson has analyzed the contemporary shift of power from “content providers” to what he calls the “openness industry,” including those players that benefit from lack of control on media distribution such as YouTube, Google, etcetera. Copyright regulation is central for his analysis:
The for a long time dominant view that copyright is a limited monopoly—limited in time and in terms of the privileges that the copyright owner has in respect of the work—allegedly in recent decades have been replaced by a view that sees copyright and ownership as one and the same. (Jakobsson 2012: 71)
This change of perspective is likely to have strengthened copyright holder positions (Lemley 2005). According to Jakobsson, the increased use of the concept of IP can be understood by the development of an increasingly neoliberal-influenced media politics (Jakobsson 2012: 72), and Jakobsson argues that this is particularly true concerning the United States where the protection of private property has strong cultural roots. Even in Europe, it is probably easier to defend copyright by referring to an intuitive understanding of ownership than with abstract reasoning about time-limited monopoly (Jakobsson 2012: 71–72, see also Loughlan 2007). The reasons, however, are not merely the outcome of conscious strategy or a rhetorical claim. I have elsewhere (Larsson 2013d) studied how the valuation of copyrighted content was appraised in the Swedish case of The Pirate Bay in order to calculate the damages for the four convicted founders of the site. The study reveals a number of problematic assumptions that followed the click-by-click valuation used by the American complainants, a model that the Court approved. I show how a number of key assumptions are sprung from analog conceptions of reality, and transferred into a digital context. This is a clear sign of a hard-to-detect, legal conceptual expansion of the meaning of “copy” in copyright that does not “fit with how the phenomenon is conceptualized by the younger generation of media consumers” (Larsson 2013d: 1; see also Larsson & Hydén 2010), which is of much greater general interest than one particular court case. The embodiment of the abstract digital phenomena makes it deceptively easy to compare them with a notion of an already present phenomenon of physical copies, and uses a similar logic for how to deal with the digital equivalents. The problem is that this is a deception; they are not the same.
Copyright as Property, Historically
While there is indeed an increasing push to treat IP as property in contemporary digital society, this phenomenon is not entirely new. Strong property notions underpinned the early development of IP; the push to use property notions to enhance the protection of rights holders seems in some sense to be cyclical and reactive. The reason can likely be found in the strengths that notions of property have—and have had throughout history. By framing copyright in terms of property, much is gained for those that hold the rights of copyright.
The conception of copyright and the link to the notion of property has changed over the years both in terms of who ought to receive protection, for what reason, and for what type of creations. Historically, this becomes evident if we look at a time before the Romantic notion of the author grew strong, before the idea of the “solitary genius” was established. For example, Schottenius Cullhed (2012) has shown how the fourth-century poet Faltonia Betita Proba has been differently regarded through the centuries. Proba wrote Centos, which refers to a method of composing, by which sentences and phrases are extracted from one or several texts and then put together in order to form a new text with a different meaning, resembling some kind of collage or assemblage today. Although positive responses to Proba's work can be found from the eighth to the seventeenth century, the perspective changes during the nineteenth and twentieth centuries. Now this form of poetry is no longer considered “real” literature, but is instead seen to be a disrespectful theft and misrepresentation of the originals. During the late-eighteenth century, as Woodmansee (1984, 1994) has discussed, the modern idea of the author as a literary individual author emerges. The notion of an “inspired genius” has played a part in strengthening copyright protection, which Hemmungs Wirtén (2004) shows through an analysis of the role Victor Hugo played in the establishment of the first international treaty on IP, the Berne convention.
However, historically, and one could argue today as well, there has been confusion about the role of authors and the industry benefits of strengthening authors' rights. Rose describes this as a “contradiction between the romantic conception of authorship—the notion of the creative individual—that underlies copyright and the fact that most work in the entertainment industry is corporate rather than individual” (Rose 1993: viii). Although Rose focuses on eighteenth-century Britain and “literary property,” his perspective is vital in exposing the origins of property. When the Statute of Anne was enacted in 1710, it was in part a legislative extension of a long-standing practice of the ancient London guild of printers and booksellers, the Stationers' Company (Rose 1993: 4). An innovation in the Statute, however, was the limited term of protection, while the guild's protection was, or had been, perpetual. Authors of this time, in the early 1800s, were still very much dependent on patronage and writing was only to a very small extent an autonomous trade with its own economic strengths. The London booksellers sought to maintain their position by establishing that copyright was perpetual, despite the claims of the statute. While the booksellers' strength was still very much reliant on their intimate connection to, or appropriation of, the authors themselves, interestingly enough, their claims had a rights-based approach stemming from common-law rights of property transferred to them by the authors. These rights of property were dependent on the classical liberal discourse represented by John Locke's notion of the origins of property in acts of appropriation from the general state of nature (Rose 1993: 4f). This meant an extension of the liberal theory of property, now targeting the work of the authors. This “immaterial” property was here argued to be no less real and permanent than any other kind of estate. The confusion between the interests of the artists and those of the publisher, and the rhetorical use of this confusion, was early on exploited by publishers in the eighteenth century version of copyright law in the United Kingdom. And when it came to controlling copyrighted works, the publishers gained strength from John Locke's theories on the rights following from property (cf Volgsten 2013: 77f). The reason for this was that the alternative, a license solution, would be less beneficial to the publishers.
Even though property-based claims of copyright are not new, copyright itself has changed immensely over the years, particularly in its scope and reach. While it originally concerned authorship over books, it now also concerns music, architecture, software code, photography, etc. This displays the inevitable connection to the reproducing technology. As Eisenstein said before digitization entered the stage in The Printing Press as an Agent of Change (Eisenstein 1980: 121): “[u]ntil it became possible to distinguish between composing a poem and reciting one, or writing a book and copying one; until books could be classified by something other than incipits; how could the modern game of books and authors be played?” Rose, too, notices the technological foundation of the regulation, and it is quite remarkable that even if Rose in the early 1990s had not yet seen the breadth of online creativity we witness today, he saw the construction of the institution of copyright as fundamentally challenged by digital technology:
Copyright developed as a consequence of printing technology's ability to produce large numbers of copies of a text quickly and cheaply. But present-day technology makes it virtually impossible to prevent people from making copies of almost any text—printed, musical, cinematic, computerized—rapidly and at a negligible cost. (Rose 1993: 142)
Rose emphasizes the role of technology in copyright's “moral idea” in terms of its design having originated in “printing technology, marketplace economics, and the classical liberal ownership individualism” (Rose 1993: 142). This means that the benefits of the “propertization” of copyrighted goods have been around at least as long as the Gutenberg press. But how should the particular technological development from material to immaterial reproductions of copyrighted goods be regarded—as a change in degree or a change in kind? Renner may not be very helpful here, but in terms of what he calls the development of the social substratum, he claims that it “knows evolution only, not revolution” (Renner 2010/1949: 253); that is, its development is a gradual process rather than the outcome of leaps. When it comes to the technological and ontological change that is relevant for IP in a digital context, I will return to this later in terms of “control.”
Between Legal and Social Norms
The gap between law and what can be termed social norms has, in the field of illegal file sharing of computer programs, movies, and music via the internet, been widely discussed (Altschuller & Benbunan-Fich 2009; Feldman & Nadler 2006; Jensen 2003; Larsson 2011b, 2012a; Larsson, Svensson, & de Kaminski 2012a; Larsson et al. 2012b; Lessig 1999, 2008; Moohr 2003; Schultz 2007; Strahilevitz 2003a, 2003b; Svensson & Larsson 2009, 2012; Tehranian 2007; Wingrove, Korpas, & Weisz 2010). Several studies have shown that a large segment of the global population sees illegal file sharing via the internet as a natural element of everyday life, irrespective of the IP regulations of the state (Andersson Schwarz & Larsson 2013; Goodenough & Decker 2008; Svensson & Larsson 2012). In addition, or perhaps consequently, there is a counter-narrative to the protectionist push. NGOs such as the Electronic Frontier Foundation (EFF) propagate digital rights and list what they consider patent abuses. The open source movement supports the use of open source licenses (such as Mozilla Firefox and Android), as opposed to traditional proprietary software (such as Microsoft Office). Furthermore, Creative Commons is a well-known concept and movement in the copyright field and a good example of how writers, composers, photographers, and other creators can modify and oversee their copyright claims. On a more political level, there are a number of Pirate Parties in different countries; the Swedish Pirate Party, for example, received two European Parliament seats in the 2009 election, and the German Pirate Party received 9% of all votes in the 2011 regional Berlin Parliament election.
Conceptual Legal Change
In addressing Renner's analytical approach to the difference between the legal form and its social function, IP is of particular interest—especially, when trying to understand law in a digital society. The concept brings together all aspects contained in the argument put forward here regarding social change and its relation to law: it is connected to a particular language-based legal concept; it is central to most legal and economic systems; it is of substantial metaphoric content; and it is especially challenged by digitization (cf Larsson 2013b). For example, Mark Johnson states that “we speak of intellectual property, such as ideas we have that can be copyrighted, patented, and excluded from use by others. Intellectual property is only metaphorically an entity, and it is only metaphorically transferrable to another for their use” (2007: 866). As Renner does not clearly investigate what it is that, in fact, changes in the content of the legal norms that drive social change or change in law's substratum, there is a need here to express this type of change in terms of conceptual change, a change in meaning. One way to address this cognitive dimension of legal change is through conceptual metaphor theory.
In the development of metaphor theory, Max Black's Models and Metaphors (Black 1962) has been influential in introducing a cognitive dimension. Black states that the metaphor is not just an aesthetic embellishment of language, but that it also organizes and transforms our perception of the original term. The cognitive metaphor studies that have inspired this article started around 1980, with Lakoff and Johnson publishing Metaphors We Live By. Metaphor studies have found their way into policy research and political analysis (Amsterdam & Bruner 2000; Carver & Pikalo 2008; Drulák 2008), often theoretically influenced by Lakoff and Johnson (1980, 1999), Black (1962, 1979) or the pragmatic philosophy of Schön (1979). Conceptual metaphor theory has been used for analyses of legal processes or debates relevant to law in many studies (Berger 2004, 2007, 2009, 2011; Blavin & Cohen 2002; Herman 2008; Hunter 2003; Johnson 2007; Joo 2001; Larsson 2011b, 2012a, 2012b, 2013b, 2013c; Morra 2010; Tsai 2004; Winter 2001, 2007, 2008). The key idea of metaphors is that they are analogies that allow us to map one experience (the target domain) in the terminology of another experience (the source domain), and thus acquire an understanding of complex topics or new situations. Metaphors tend to be viewed as exclusively linked to linguistic structures rather than to thinking and the mind. In contrast to this minimalist conception of metaphors, Lakoff and Johnson have shown that a metaphor is not simply a figure of speech but a “figure of thought” (Lakoff 1986); that is, metaphors not only carry lingual, but also conceptual features (Lakoff & Johnson 1980). The concept of metaphor cluster is sometimes used to describe how concepts can be bound together over a similar underlying conception, and thereby support the meaning of each other (Larsson 2011b: 60–61, 72–73, 2012a, 2013d), for example, to analyze metaphors in copyright and IP (Loughlan 2006).
If, for a moment, we view the concept of property from the perspective of categorization, often addressed in cognitive theory, we can first conclude that much of human reasoning and language depends on categorization (Johnson 2007; Lakoff 1987; Lakoff & Johnson 1999; Larsson 2013a; Winter 2001). According to the classical view, which often is the prevalent one in law (Johnson 2007), categories should be clearly defined, mutually exclusive, and collectively exhaustive (Lakoff & Johnson 1999: 373–414). However, a cognitive approach following Lakoff and Johnson (1999) renounces the classic approach in that it accepts that natural categories are graded (they tend to be indistinct at their boundaries) and inconsistent in the status of their constituent members. It is not that the classical view is entirely wrong, according to the cognitive approach; it is just that the categorization based on shared properties only displays a (small) part of the story (Lakoff 1987: 5). This means that even categories are to some extent culturally biased. Categorization, for example, is expressed by Bjerre (1999) as a core activity even in law: “Legal thought is, in essence, the process of categorization … [c]ategorizing phenomena determines how they will be treated by the legal system.” Bjerre concludes that “[t]his basic truth is particularly important to the law because so much of it consists of arranging the world into language-based categories: ‘property,’ ‘contract,’ ‘good faith,’ ‘consent,’ ‘proximate cause’,” etcetera (Bjerre 1999: 354). In terms of Renner, one could say that the categories of property and contract have remained, but their social functions have changed immensely (think of clickwrap agreements, for example). Bjerre's intention is to show that the concept of property, too, has a “radial structure” (1999: 354), which Johnson describes in terms of its metaphorical content:
The concept “property” is not a classical category defined by a set of necessary and sufficient conditions. Instead, the concept is a vast, radially structured category with a small number of central members or prototypical cases surrounded at various distances by noncentral members, according to principles of extension such as conceptual metaphor and metonymy. (Johnson 2007: 867)
Crucial to the conceptual change that claims IP as property lies a cognitive operation that can be described as embodiment. It means a borrowing of concepts from the physical and spatial, as well as the body, to make sense of abstract phenomena that may play a role in the legal conceptual change of property into a digital domain. As a part of conceptual metaphor theory, embodiment is of great importance for the process of something becoming meaningful, according to the focused strand of cognitive science (Gibbs 2005; Johnson 1987; Kövecses 2008; Lakoff 1987, 1993; Lakoff & Johnson 1999; Winter 2001). This means that there is constant borrowing in progress and interdependence on the surrounding context, the body as well as spatial relations, in order for language to become meaningful. In short, metaphors are often based on our interaction with our physical and social environment (Lakoff 1993). This is likely a process that makes it easier to speak and think of IP in terms of physical things. It fits well with what Michael Reddy first identified as the conduit metaphor system (Reddy 1979; see also Winter 2001: 52–56, 2007: 884), which is a systemic set of mappings from the source domain of physical objects to the target domain of mental operations that observes that physical or spatially related phenomena such as objects, seeing and grasping metaphorically are used for conceptualizing abstract concepts such as ideas, knowing and understanding: “ideas are objects,” “knowing is seeing,” “understanding is grasping” (see also Bjerre 2005). The conduit metaphor system enables us to automatically extend the conceptual mapping by modeling other actions in the physical domain—as a result of embodiment.