Intellectual Property, the Challenge of the Fake, and the Crisis of Policing

Late twentieth-century globalisation saw the creation of a number of new trade conventions. Treaties such as GATT continued to regulate the terms on which countries could import or export, subsidise, or protect their markets, but a new concern emerged around IP. This is not to say either copyright or patents were new. They had been the object of global governance from the late nineteenth century, for instance through the Berne Convention. What was new was the scope and reach of agreements that sought to harmonise IP law at a global rather than interstate scale. These new conventions also covered products that had previously been seen as public goods, and therefore off-limits. As such, many critics saw this moment as effecting a new wave of capitalist enclosure.

By now there is a vast literature on the new global IP regime. It is not our intention to rehearse that here. For the purposes of understanding how the problem of the fake emerged, three kinds of scholarship matter. The first comes from disciplines such as law and international relations and is aimed at those tasked with implementing new policies. This scholarship interprets and legitimises the IP regime. In this work and in policy-makers’ understanding of it, the fake emerges front and centre as a problem in need of regulation. This work positions the new regime precisely as a response to rampant counterfeiting. The driving triumvirate of ideas is that without specific protection, (1) cheap copies would thrive and innovation would wither (Kim et al. 2011), (2) the trade in counterfeit goods would primarily benefit transnational organised crime (IMPACT 2011) and (3) the quality of copies would necessarily be inferior, potentially leading to catastrophically unsafe goods (WHO 2018).

The second set of scholarship comes from activists and scholar activists who challenge IP enclosure on the basis that TRIPS and other such treaties have privileged the protection of ‘innovation’—the purview of rich countries—at the expense of ‘access to knowledge’ sought after by poor countries (Kapczynski 2008). These critics claim that the fake is a ruse for further entrenching long-standing global inequalities, keeping price-points of essential commodities such as medicine or software high and therefore out of reach to those who arguably need them most (Gopakumar and Shashikant 2010).

For our purposes, neither defenders nor critics of the new IP regime take the fake seriously as a force in and of itself. In their work the fake is either a symptom or an effect, a bogeyman or a ruse. Instead, it is a third strand of scholarship—the anthropology of fakes—that we find helpful in our thinking about the rise of the fake as a force in its own right.

What the anthropology of fakes tells us, particularly as it appears in anthropologies of globalisation and its impacts on commodities and markets, is that globalisation has both stoked our desires for commodities and, by exacerbating inequalities, constrained our abilities to satisfy these desires. It is this conundrum of globalisation that the fake seems to resolve.

Some anthropologists have explored this conundrum and its apparent resolution by studying the proliferation of forms of appropriation and mimicry as an aspect of globalisation (Abbas 2008; Bubandt 2009; Coombe 1998; Ferguson 2006; Newell 2013; Taussig 1993; Wong 2013). Others have explored how, as claims about fakeness gain traction, we see a corollary erosion of the authority or legitimacy of experts and their expertise. This work examines how expertise itself becomes suspect on the basis that it is elite and exclusive, rather than popular and accessible. This creates a messy politics in which, for example, those making calls to decolonise the curriculum as well as the vaccine-hesitant (Goodman, this issue) invoke similar justifications for their demands to dismantle historical hierarchies. In short, in what has been referred to as a post-truth world, authority to declare what is real and what fake has been radically eroded (Cheyfitz 2017; Copeman and da Col 2018; Szakolczai 2022).

We build on these observations about the proliferation of fakes at a time of growing global inequality and about the growing role of the fake in popular challenges to established and perceived hierarchies. We also build on our own work in which we have called for turning away from a focus on the ontology of the fake. In our 2023 special section of Medicine Anthropology Theory, ‘The Long Shadow of Fake Drugs and the Social Lives of Fake-ness’, we argued for this dynamic understanding of fakeness because, simply put, the fake resists any ontological determination or fixity. The instability of the fake is important, as we argue in this article, but for us it is sets of claims regarding fakeness that are the objects of inquiry. We argue for the usefulness of examining what could be called a mechanics of the fake. We ask: what do claims about fakeness allow, how are claims about fakeness made, and with what force do they operate (Bandora 2023; Hornberger and Hodges 2023; Hornberger et al. 2023; Peete 2023; Sirrs 2023; Thakur 2023)?

This is both a conceptual and a methodological approach, which we call ‘fake-talk’ (Hornberger and Hodges 2023). We have argued that fake-talk has particular qualities that set it apart and give it its power. Fake-talk does not need evidence; it in fact thrives in the absence of evidence. Fake-talk flourishes in popular cultural forms where evidence is performed rather than presented. Unmoored from the need for evidence, fake-talk easily travels from context to context and connects what might seem otherwise unconnected. This permits it to express the otherwise inexpressible, and to offer trenchant popular critique.

The ethics of fake-talk as an analytic is rooted in our close attention to knowable claims about fakeness rather than in an unknowable ontological status of the fake. This inevitably means that we could be misread as flippant or as simply not caring what is fake and what is real. We acknowledge that we run the risk of being misread as callously disregarding possible dangers that fakes may present or inflict. This is not our position. With fake-talk's focus on claims to fakeness, we are able to see claims and investments in the normative status of fakeness as part and parcel of the power of the fake. As we have argued, deference to the normative ontological understanding of fakes has warned off many scholars of fakes from critically investigating either fake drugs or any fakes that are seen to be dangerous (Hornberger and Hodges 2023). Our ethics compel us to look squarely at such examples. For to shy away from such investigations serves no one (Hodges and Hornberger 2023).

In this special issue of the Cambridge Journal of Anthropology, we extend and elaborate our recent thinking through the new frame of policing fakes. Fake-talk is what guides our inquiries into the pairing of policing and fakes. We use ‘fake’ in both analytic and descriptive ways through the conceptual and methodological tool of fake-talk. Fake-talk allows us (and all the authors in this special issue) to use ‘fake’ to work with and from, rather than challenge or evaluate, actors’ own categories. For us as scholars, ‘fake’ is indeed as capacious and unruly a category as those who use it assert it to be.

As the reader will recall from the opening paragraph of this introduction, the form of the fake is infinite. And yet we have found that different kinds of fakes attract different kinds of significance. Some fakes hold a much higher profile than others. What we can see is that where there is value, there are fakes. This state of affairs describes fakes-as-commodities and can be observed at play when anything from fake handbags to fake paintings come under the purview of the police. Yet some fakes have a privileged status such that they can even stand in for others. This is the case of the medical fake.

Claims about fake drugs now cast a long shadow over all counterfeits. This is because controversies over pharmaceutical fakes have held pride of place in shaping debates about fakes in general (Hornberger and Hodges 2023). The supposed danger of all fakes is made manifest by mobilising the sharpest and most urgent terms of fake drugs. Under the sign of drug security and its implications for health and life, the problem of fake drugs has played a leading role in how police come to be deployed as part of a global project of anti-counterfeit policing (Hornberger 2018). That the primacy of the fake drug legitimates all anti-counterfeit policing brings us back squarely to the historical IP moment: fake drugs have been at the forefront of marking the importance of the new global IP regime and its enforcement (Hayden 2023). The observable effect is that the enforcement of IP regulations spills over from protecting business interests to mobilising the police to protect the safety of the public at large.

Just as scholars of the fake have tended not to study policing as such, scholars of policing have not often focused on questions of fakeness and the role of police in the enforcement of the new IP global regime. What the anthropology of policing does show, however, is that policing is not as straightforward as it may seem. Policing is connected to both state and society, but it does not simply represent either (Clarke and Hornberger 2023; Martin 2018). Rather than being simply enforcers of pre-existing law, as policy-makers often imagine, police are actors in their own right. Classic police scholarship highlights how police find themselves caught between laws that limit the powers of the police and the social expectation to produce results. This work has shown how police address these constraints by operating within a dramaturgy of front- and back-stage policing (Bittner 1970; Hornberger 2011; Manning 1977; Skolnick 1975). Some have pushed this further to point out how police exist as a law unto themselves (Benjamin 1986; Taussig 2006). Taken together, this work shows how police are agents in their own right, not just functionaries carrying out the orders of others or ensuring compliance with the law.

Anthropologists of policing in the Global South have added the observation that the police itself is not a consolidated institution. They have shown the multiple forms policing assumes in distributed forms of sovereignty such as vigilantism, private police forces, and many things in between. This is often referred to as ‘plural’ policing (Baker 2008; Diphoorn 2016; Goldstein 2012; Hansen 2006; Smith 2019). Although the idea of a consolidated state police with a monopoly over the legitimate use of violence remains a powerful normative understanding, work highlighting multiple forms of policing has done much to challenge this normative understanding and to show how it operates most strongly instead as fantasy and desire (Jauregui 2016).

Recent scholarship has also chronicled how the police is an institution in crisis. Globalisation has accelerated and exacerbated global inequalities, producing a corollary rise in social unrest. In response to this unrest, police are deployed to shore up a social order widely felt to be unravelling. This has occasioned a new wave of protest movements calling out police brutality. In response, some scholars have produced critiques of policing, in particular the role of the police in protecting and perpetuating racialised orders (Clarke 2020; Fassin 2013, 2017; Hautzinger 2007; Mudiwa 2018; Ralph 2019; Thusi 2022). Others have pointed out the irony that it is the over-policed who are often those who most demand that police reinforce social order and safety. Police are mistrusted and feared at the same time as their presence is demanded (Comaroff and Comaroff 2016; Hornberger 2013).

Our examination of the role of police in policing fakes is part and parcel of these larger narratives. We suggest that the policing of IP is highly illuminating. In the midst of the ambient crisis of policing, the policing of fakes, particularly fake drugs, is one activity where police can redeem their reputation as guardians of public safety. Yet what we see when we look more carefully is that police are in fact enforcing IP compliance rather than ensuring public safety. Public policing is put to work anew for private interests, and to protect an order that lies at the core of the exacerbation of inequality.

In what might look like an apparent resolution of what would otherwise be a contradiction in the role of the police, what our work opens up is a chaos of policing, where the word ‘plural’ is outstripped by the endless refractions of forms of policing. In the policing of fakes, we see a radical contingency of policing which develops as part and parcel of the policing of value. Police cannot ever declare what is a fake; so too we suggest that there is no ontological certainty in defining what is policing because there are as many endlessly proliferating forms of policing as there are fakes.

Ethnographies of the policing of fakes help us see how policing is often at some distance from its stated goal of serving the state and society at large. In the policing of fakes, we see how the dichotomy of good (legitimate) police versus bad (corrupt) police crumbles. In ethnographies of the policing of fakes, police become one of many forces we see at play in markets, and in the production and circulation of value. These two points—the infinite forms of policing that the policing of fakes inaugurates, and how the policing of fakes materialises a powerful reality for fakes—move into the foreground in the following section where we highlight key contributions of the individual articles in this special issue.

The Policing of Fakes

The articles of this special issue explore the coming together of fakes and policing in Cape Town, Chennai, Harare, Mombasa, Rio de Janeiro, and the Polish abortion underground. The authors track how the policing of fakes animates policy conferences, urban rumours, drug busts, dispensing of summary justice, activism, and street traders. In this the police mainly appear as uniformed police. They do so by carrying out an array of activities.

Hornberger asks how scarcely resourced police forces come to commit themselves to a fight against fakes that ultimately has more to do with private than public interests. She addresses this with ethnography of the aesthetics of persuasion at international meetings of police forces that inculcate an affect of outrage. Hodges also focuses on the aesthetics of fake-talk. Spurious drug busts are a trope of Indian photojournalism. Exploring the visual culture of this coverage, Hodges shows how it stages for viewers both the heroics of Indian policing and the dangers of fake pharmaceuticals. The spectre of fake drugs also animates Sydney Calkin's piece on fake-talk in the Polish abortion underground. In this case, fake-talk about abortion pills has complex, contradictory stakes, not just for people seeking abortions but also for vendors and for activists. These stakes unfold as pills and rumours circulate in a clandestine abortion geography. Rumours regarding fake medication take on yet another form in Zoë Goodman's article of how Mombasans responded to vaccination drives and other Kenyan state actions during the COVID-19 pandemic. She shows how the fantastic accounts that informed Mombasans’ vaccine distrust are rooted in long-standing experiences of being over-policed as Africans and as Muslims. These accounts also serve as critical observations about the comparative under-policing of dangerous corporate activities. In Ushehwedu Kufakurinani's account of the street trade in unlicensed sexual performance enhancers for men in Harare, the official ban on these substances undergirds informal economic relations and opportunities that include not just traders and customers but police. Though the ban itself is motivated by state concerns about fake drugs, fake-talk in the street trade is itself carefully policed to protect opportunities. Kufakurinani's case also involves the spectre of police impersonators, the central concern of Eduardo de Oliveira Rodrigues's work on the landscape of informal and formal policing in poorer areas of Rio de Janeiro. Rodrigues addresses the figure of the pi-lícias: unofficial actors who imitate and have relations both of proximity and distance with official police, who manage those relations subtly in the service of their work.

Taken together, these articles make shared interventions into understanding relations between policing and fakes. Addressing those relations in both directions, we start from two observations. The first is that fakes are notoriously difficult to define or to discern. Though we cannot truly know the fake, we can observe and engage with claims about fakeness through the tool of fake-talk, as discussed earlier. Second, official police can be said to quite literally make the fake through their deployment as the instruments of law and policy enforcement and through their own practices of discerning fakes in their everyday work.

These two observations are only the beginning. The articles do not just address particular fakes and particular forms of policing. In the coming together of fakes and policing, we can group our broader insights under the following assertions: (1) the meticulous labour of policing is required to make fakes real, (2) chains of substitution and their logic of urgency make some fakes stand in for all, (3) policing itself creates a general insecurity for which the declaration of fakeness can offer the possibility of resolution, (4) in the policing of fakes we see the creation and extraction of value, and (5) the closely related point that, particularly when we look at how police themselves create and extract value through fakes, we find that there are as many forms of policing as there are kinds of fakes. In other words, as much as the fake constantly stumbles to find ontological footing, so too we see how a coherent form of the police fails to hold. Instead, it reproduces itself into infinite forms. We elaborate these five insights in this article through a discussion of the specific articles.

Let us begin with the question of the meticulous labour required to bring the problem of fakes to life. The articles describe in detail the practices required to take fakes from conditions of ontological uncertainty (what is a fake?) and legal abstraction (who owns the real?) and to bring them into the world of ordinary practice. The instability of the fake is not addressed through once-off declarations. It is not enough to create laws that place certain kinds of goods under the category of fake and direct police to enforce these. The policing of fakes instead requires multiple, distributed, repetitive, and reverberating acts, to frame fakes as such. This is how policing makes fakes. Even so, the instability of the fake endures and multiplies through these practices of policing (Hornberger et al. 2023; Peete 2023).

In the first two articles, both Hornberger and Hodges describe technologies of persuasion at play in policing fakes. Hornberger explains how the fixing of the fake takes shape in two ways in the space of an anti-counterfeit policing conference that brings together police officers, IP lobbyists, and industry representatives. The first is the work of persuading police that fakes are an urgent problem. The second is persuading them that they are the force most suited to fight this threat. This involves practices not just of convincing but of producing conviction as well, by minimising or shutting down doubt regarding what kind of problem the fake presents. Rather than mobilising detailed empirical information to make the case, such technologies of persuasion draw on registers of affect to create moral sensibilities and shared outrage regarding fakes.

Also focusing on the aesthetics of persuasion, Hodges brings to the fore the visual register when she analyses the visual culture of fake drugs in general and India's spurious drug-bust photojournalism in particular. She shows how spurious drug-bust photos draw force from adjacent visual idioms that are taken from policing in the global war on drugs as well as from public health posters. She highlights the persuasiveness of the visual register in evoking the urgency both of the problem of fake drugs and of the need for intervention by police as natural arbiters of that problem. In short, by calling attention to not just the spectacle of the spurious drug bust but the spectacle itself, Hodges brings a sensorial register into play for what we call here the meticulous labour required to bring the truth of the fake to life. Both Hodges and Hornberger show how, even though claims about fakeness do not necessarily require strong or explicit evidence, they open up a vast space for performances of evidence.

Goodman's article pays close attention to Mombasans’ narration of their own suspicions and sometimes condemnations of what vaccines are meant to deliver. Here it is not the uniformed police but ordinary people themselves who police fakes. What is noteworthy in her account is that this policing itself emerges as part and parcel of a broader reaction to feeling over-policed. Here her signal example is how people discern a fake vaccine from a real one. The conspiratorial rumours she describes about vaccines make the fake real by unsettling the boundaries between the reasonable and the fanciful. In so doing, her account provides further nuance to this question of evidentiality, showing that evidence can dwell in the register of the fantastic. These three articles show that the labour required to make the fake tangible calls on the hyper-rational authority of the factual or juridical as easily as it makes use of the fantastic and its appeals to the visceral.

The second theme that emerges across these articles is the central role played by chains of substitution. Chains of substitution do the work of bringing the fake into the real—in this case, through a logic of proxy. We see these chains of substitutions take shape in policy literature and policing practice. As will be clear through Kufakurinani's contribution to this special issue, pride of place is given to particular everyday over-the-counter products: in his case, male sex enhancers. Other scholars have also examined the special proxy status of cough syrup (Thakur forthcoming) and cosmetics (Bandora forthcoming). In Kufakurinani's article we watch how the persuasive force of these chains of substitution works. He traces how male sex enhancers (‘fake Viagra’) come to be the object of both a ban and how the policing of this ban in turn inaugurates additional forms of policing in Zimbabwe.

Proxies matter because they often reinforce the need for more policing as they make the point that the proxy in question is only the tip of the iceberg (Hornberger 2018). Similarly, the sheer difficulty of finding fake drugs to police is used as evidence that criminals remain one step ahead. These products constitute a powerful, if also imagined, pharmacy of fake drugs. This pharmacy of fake drugs is to be found in the policy document and deep in the footnotes of scholarly publishing on the problem of fake pharmaceuticals (Hodges and Garnett 2020). This imagined pharmacy of fake drugs gets materialised in the police station evidence room, for example, where seized goods—if they are not destroyed, sold, or used—can prove the reality of the fake, even as their pharmacological properties remain untested. As a technique of persuasion, chains of substitution help to establish the truth of fake pharmaceuticals as a real and present danger. This in turn creates urgency for the policing of any kind of fake.

The third theme that the articles show is that even when policing is not obviously directed at fakes, policing can play a significant role in producing them. In both Calkin's and Goodman's studies, policing creates fakes ambiently or obliquely. Both accounts show how policing creates spaces of insecurity, making fertile ground for credible claims about fakeness. The policing they describe is not concerned with fakes as such. These articles’ focus is instead on how policing regimes affect people who then mobilise the fake to navigate this effect. This work points to a different, more capacious work performed by the signifier of the police. Calkin shows how Poland's legal regime for policing abortion creates an ambiguous realm where abortion is accessible but not legal, and where the policing of abortion-related activities is sporadic but creates an ever-present anxiety. Abortion-seekers’ concerns about fake pills and fake doctors or clinics transforms fakeness into a tool by which abortion-seekers navigate the uncertain, potentially perilous, pathways they face.

Goodman's article also makes the point that policing creates an environment of insecurity and suspicion, within which fake-talk emerges as a means for negotiating or commenting on one's position in it. She shows how claims about the fakeness of vaccines serve as hinges for questioning the legitimacy not only of vaccines but also of the police. In her account, policing fuels vaccine rumours rather than diminishing them. What both articles make clear is that while forms of policing may claim to protect the safety of the public, policing itself produces conditions in which claims about fakeness thrive. Policing in the name of protecting the social order brings with it the uneven protection of some and the violation of others. In both articles, fake-talk points the finger at policing, either as a trenchant critique or as a more tacit way of navigating the pitfalls of the insecurity policing creates.

Our final set of insights moves from looking at how policing produces fakes to how fakes produce policing. Here we see how, because of the infinite variety of fakes, the policing of fakes creates an infinite variety of forms of policing. This comes on the back of our observation that the creation and extraction of value is central to the policing of fakes. A South African police officer obtains a better position. A Polish abortion provider demands a higher fee. Harare street traders make their livelihoods, and so do Harare police. Indian police find public redemption, and so on.

Let us return for a moment to considering how fakes produce policing. If the fake is ontologically unstable, too legally abstract, and of questionable importance, police might plausibly turn away from it and move on. But what the articles show is the opposite. In response to the problem of the fake, forms of policing proliferate. In fact, in the face of policing in crisis, the policing of fakes offers many opportunities for the police to reinvent itself. This highlights the contingent grounds from which different forms of policing emerge as legitimate. Some articles show how the problem of fakes invites the police to access new resources. Others outline how the problem of fakes provides new moral missions for police to embrace. What all the articles show is how the fake provides a fertile and febrile ground on which unbridled policing can thrive.

Policing scholarship has largely shifted from studying or conceptualising the police to taking policing as its object. New ethnographies of policing show how policing is neither a unitary nor a stable thing, but multiple in forms and practices (Clark and Hornberger 2023). In the articles of this special issue, we do not simply see additional (or ‘plural’) forms of policing. Instead, what we see is that there are as many forms of policing as there are forms of fakeness.

Kufakurinani's piece explores policing sex enhancers on the streets of Harare. His tale opens with a police bust on the street trade in these goods, in the wake of a ban on over-the-counter sales. Through carefully observed ethnography among street traders, Kufakurinani shows how both the ban and its front stage of policing fakes simply constitutes a background for forms of policing that then proliferate. His account enumerates the forms of policing of fakes that the ban inaugurates. These range from extracting bribes, to one set of police shielding traders from other police, to traders policing their own market practices. What connects these many forms of policing? Kufakurinani shows how they are all rooted in the production of value for all those who interpolate themselves into a form of police. Kufakurinani moves away from seeing policing as simply the state body entrusted with the legitimate use of state violence, to one of many profiting by the markets they create and maintain. What this shows is that once policing is about markets, its proliferation takes endless forms, unfettered by normative presumptions of what the police are meant to do: protect and serve the public.

For the purposes of thinking about the policing of fakes more generally, seeing the intense imbrication of police with markets helps us unsettle the reading that the role of police in markets is simply ‘corruption’. This is also distinct from the well-documented reading of all regulation as operating within a hydraulics of the market—that closing off one avenue for the production of value necessarily creates a new one. The value produced by bans and by the policing of them is not simply to be able to arrest more people, or to drive up prices by pushing goods into illegal domains. The policing of fakes is not necessarily about producing more violence or restricting access to goods. This matters because the pieces in this special collection show how IP regime enforcement functions less to produce security (especially health security) and more to produce the governance of new markets and the extraction of value from them.

This brings us to the final article, that of Rodrigues on police impersonators on the streets of Rio de Janeiro. Rodrigues’ novel contribution shows that police impersonation does not necessarily pose a threat to official policing, as is commonly assumed. Instead, he shows how fake police emerge when something stands to be gained. What police impersonators fake is the authority to extract value. In turn, this impersonation increases the aura of policing. Rodrigues’ account of fake police shows ever more multiplication of the forms of policing. If policing is ultimately about the extraction of value, these multiple forms of policing question the idea that policing is singular or coherent.

To sum up our brief accounts of these articles and the moves they make collectively, the fake produces policing as a restoration of order in the face of the challenge the fake presents. But when it comes to actual policing practice, police in fact prosecute a dissolution of order. There are no fakes to police; there are only claims about fakes to police. This directs us to the careful empirical study of the multiple new institutional forms and practices into which social order consequently dissolves, and the new opportunities and purposes thus availed. In the cases at hand in this special issue, these purposes include social critique (Goodman), creating new markets for trade and rent (Kufakurinani), new convictions and the career paths these ground (Hornberger), public redemption (Hodges), the devolution of policing to the participants in a clandestine healthcare underground (Calkin) and finally the amplification of extrajudicial, rough policing (Rodrigues). The effect of this is not to enumerate or describe a complete assemblage of what the policing of fakes is like in the wake of the proliferation of the markets of globalisation. Instead the essays collected in this special issue provide examples of a dynamic and ever-changing proliferation of forms of policing. Just as the fake lacks firm ontological grounding, in the policing of fakes so too are the police cut loose from their own normative moorings.

Both separately and together: policing makes fakes, and fakes make policing. These dynamics are of endless iteration. Policing and fakes refract and multiply through many sites and claims. What might appear simply to be a hall of mirrors produces very real and material effects. Ethnographic work allows us to understand these iterations by tracing in concrete detail how the seemingly unreal or invisible becomes social fact. That becoming is the work of policing fakes.