Cultural Theories of IP

Check out Mark Fenster’s really interesting analysis of the “cultural analysis of intellectual property” panel at last week’s AALS meeting. A snippet:

The problem for culturalists, as the panel made clear, is not that cultural studies can’t be prescriptive, it’s that the related epistemological and political shifts of culturalism towards postmodernism and cultural populism make prescription for intellectual property law (and any cultural policy) really tricky, if not downright unattractive. Cultural studies’ postmodern tendencies deconstruct the “authenticity” of the folk, while its populist tendencies attempt to recuperate at least parts of mass culture while resisting normative claims about the necessary value of “high culture.” To be in favor of the popular and to complicate the folk is by definition to be skeptical of state intervention that would protect the “folk” and promote “high culture,” and to be less dismissive of the market. Don’t get me wrong — I’m a cultural populist through and through and a culturalist by training. But in its excesses, the approach as it is currently practiced can also lead to an endless deferral of policy and even politics in favor of either quite abstract theorizing or banal description. My point is that as a matter of history and of epistemology, there’s nothing necessarily non-prescriptive about a culturalist approach – it’s just the state that the work in that tradition currently finds itself in.

Mark has put his finger on the problem: How to use resources from cultural and social theory to develop tools that have real impact in policy debates. One of the reasons that “economics” offers a powerful Grand Unified Theory of everything, in IP as elsewhere, is that law-and-economics folks are quite good at the payoff questions. Here are the tools, or here are the outcomes, or both. Complementary Grand Unified Theories, or even complementary middle range theories, can’t have comparable impact, as a practical matter, unless they are accompanied by comparable payoffs. Mark observes that cultural theorists are reluctant to prescribe because they fear overstepping the boundaries of content-related commitments. But I suspect that — at least as described by that panel, and as I’ve tried to explore in my own work — it is possible to borrow some of the culturalists’ tools and adapt them to IP without, simultaneously, borrowing particular commitments to high — or low — culture.