The Faculty Blog at the University of Chicago Law School is hosting another in its occasional series of online roundtables (a/k/a mobblogs), this one titled “Beyond Economic Analysis of Intellectual Property: The Need For Social and Cultural Theory?” and framed by the work of Madhavi Sunder, currently visiting at Chicago.
I will try to post a comment or two over there if I have time, but for now I’ll clip and post some provocative points from the initial posts, and make one brief observation:
Conversations about the normative foundations of intellectual property law are numbingly repetitive. From the economic contingent, there is the claim that IP is justified solely on consequentialist grounds (usually specified as utilitarian grounds), and that economic analysis is either the only way to measure its success, or the best way among imperfect solutions, or both. Economic analysts of broader mind are more inclusive in their measurements, but they are reluctant to see economics dislodged from a privileged position. From the social/cultural theory contingent, there is the claim that economic analysis is simply too narrow to do all the work that it is asked to do. This is an appealing narrative claim, even to many economists. But the economic analysis under attack is sometimes a straw man, which weakens the critique. And social/cultural analysts have struggled so far to put forward a positive account of IP; they are reluctant to acknowledge that economics offers real power when its limitations are acknowledged. Everyone ends up falling back on Jefferson, or Locke, or Kant, or (in some more recent work) Sen. There is little new under the sun.
To most IP scholars, this is re-stating the obvious (at least, I hope that it’s restating the obvious). To many scholars in other fields, I suspect that this summary would come as a surprise. Are there other legal domains whose normative foundations are still so unsettled?
What IP needs — what all bodies of law dealing with information and knowledge need — is a normative account that doesn’t simply track the economics/culture divide and trace it back to the 18th century. We need a persuasive account that integrates the two perspectives.
Anyway, on to the mobblog:
From Madhavi Sunder’s initial post:
In this opening post I pose two specific critiques of the narrow economic approach to intellectual property. First, I argue that the approach is premised on an outmoded understanding of culture itself. Law’s goal is to promote the invention of more machines, from Blackberry to iPod, and more intellectual products, from Mickey Mouse to R2D2. But the object of intellectual property law’s desire — culture — is profoundly changing. Culture is no longer understood simply as incontestable tradition handed down by recognized cultural authorities, or as canned commodity. Increasingly, culture is participatory community. We are moving away from culture as Mickey Mouse to bespoke culture empowered by a computer mouse. The narrow economic account, focused on the production of more goods, does not ask who makes the goods, and whether there is equal capacity to participate in making our culture.
Second, the current approach pays insufficient attention to the interrelationship between culture and development. A 21st century theory of culture worth its salt cannot ignore the important issues of development and global justice. Culture plays a critical role in development, and in meeting the U.N. Millennium Development Goals, which include the eradication of extreme poverty, universal education, gender equality, child and maternal health, combating HIV/AIDS, and achieving environmental sustainability. Intellectual property laws bear profoundly on what Martha Nussbaum calls central human capabilities, from the capability to live “a human life of normal length,” to “being able to use the senses, to imagine, think, and reason — in a “truly human” way — cultivated by adequate education.” Morever, cultural production is increasingly important to economic development in a Knowledge Age. That is, cultural democracy is not only an end, but also a means to promote economic development.
And from the first mobblog reply, by Rob Merges:
What I find interesting, however, is how the old features appear on Professor Sunder’s map. Older varieties of cultural artifact are now a jumping off point for new forms of participation; they are no longer just “incontestable tradition or canned commodity.” A lot could be said about this idea that traditional cultural artifacts can be described as instances of incontestable tradition or canned commodities; it is really very interesting. But I will limit myself here to two points: (1) this sounds a good deal like it is treating items of “traditional” culture as an “input” into a transformative, participatory process — which runs into the objection that Professor Sunder herself raises earlier, about treating the products of intellectual creativity instrumentally, in the manner of an economist; and (2) it tends to take the existence of cultural artifacts as given (“tradition”) or at least trivial (“canned commodity”), thereby “flattening” them into a bland background that serves primarily to emphasize the dynamic “foreground” of the products of today’s participatory culture.
Both points are a matter of narrative emphasis, in a way. In Professor Sunder’s account, the dynamic movement happens when people interact with or participate in culture. The cultural artifacts themselves are bracketed in this account; they appear as static starting points for the real action in the story. The story I would emphasize — the way I would re-orient the map, so to speak — places these artifacts front and center. I would treat them as important entities in their own right, and not mere “inputs” into others’ creative process. I would not want to completely bracket consumers, users, viewers, audience members. But I would not want to feature them only, either. Put simply, when I see a book desribed as an “input,” I imagine the author (who sweated over every chapter, even every sentence if it is a good book) saying “that’s no ‘input,’ it’s not a bushel of wheat or bag of potatoes — that’s *my story* you are talking about!”
Put another way, I do not take high-quality cultural artifacts — books, films, plays, videos, paintings, etc., etc. — in any sense for granted. They come from somewhere; people make them. The conditions under which these creators operate matter to me, which is again why I do not just assume they will appear, in high-quality finished form, ready for me and others to consume, learn from, participate in, or the like. I would also not assume that the only way to argue with or supersede or transcend or otherwise “contest” a high-quality work of tradition depends on faithfully replicating all or part of it first. Some ways of contesting artifacts might involve this step; but not all I do not think.
Again, there is much more to say here. But let me make one final point, which I will try to elaborate in a subsequent post. I think IP policy has as one of its central functions to attend to the care and feeding of creators of original works. I believe also in participatory culture; and I think many wonderful experiments along these lines are being run as I write this. I am concerned (maybe more concerned than Professor Sunder, though it is hard to tell because the conditions for creating “traditional” and “commodity” culture are somewhat outside the map she is working from) that an over-emphasis on the conditions of participation may significantly worsen the conditions for original creativity.
Mahdavi Sunder has a reply to this, and there is more to come, both in posts and in comments.
There are things to say, but I guess we should push any discussion of the substance over to the UC blog — thanks for the heads up, Mike.