Professor Madhavi Sunder on IP law and those it leaves behind
People love to complain about IP law, and not just in academia. From attempts to halt distribution of Danger Mouse's Grey Album to DMCA takedowns of YouTube videos of toddlers dancing along to Prince, many people think IP law is stifling creation or even culture. At the same time, IP law often seems to hurt poor people, like Ethiopian coffee farmers who have difficulty protecting their brand or creators of cultural works like Mbube (the African hit that was the source material for The Lion Sleeps Tonight) who lack access to IP protections. These anecdotal complaints and the broader issues that underlie them have become a part of widespread conversation.
In this week's Works in Progress (WiP) talk, Professor Madhavi Sunder presented excerpts from her upcoming book, "iP: YouTube, MySpace, Our Culture" (Yale University Press). In the book, Prof. Sunder looks at the sources of these controversies and offers ideas about how law should change to address them.
Prof. Sunder's arguments center around a critique of the prevailing law and economics explanation/justification for IP law - that it exists to solve a public goods problem and incentivize creators by giving them some exclusion rights. According to Prof. Sunder, there is more to IP than this. She argues that they are an important part of creation of culture, and, drawing extensively on work by Martha Nussbaum and Amartya Sen, important enablers of human "capabilities". Prof. Sunder uses each of the examples mentioned above, from Danger Mouse to Ethiopian coffee farmers, to show how current IP law often fails to maximize or even promote these capabilities. IP law, Prof. Sunder argues, does not do enough to address either cultural or distributional concerns.
Many commenters, while agreeing with or at least not contesting Prof. Sunder's account, asked different versions of a single question: if we accept Prof. Sunder's philosophical vision of IP, how does law change on the ground?
For example, France is currently able to protect its cultural/agricultural IP with relatively strong and effective legal tools (think champagne) - why can't Ethiopian coffee farmers do the same? Does or should law treat the two cases differently? Prof. Sunder suggested in response that there are two problems: first, she claimed, "law too often treats the poor as the wardens of raw materials rather than as the cultivators of knowledge, where much of the economic value lies . . . law must recognize its biases when determining what is public domain and what is 'intellectual property.'" This suggests that the range of IP protectable by law should be different, but doesn't say where the new line should be. I'll call this the "strong" version of her argument - there could be quite sweeping changes in the scope of IP protections, but it's somewhat hard to pin down the answer to the commenters' root question of how things will change practically or doctrinally.
Prof. Sunder offered a second response, arguing that "the poor have unequal capacity to cultivate their knowledge as intellectual property. We ought to focus on improving access to P.R. tools, opportunities for commercialization, and legal information about what IP strategies may help them best so they can more fully participate in global cultural production, and reap its benefits." I'll call this the narrow version of her argument. It is surely correct - Ethiopian coffee farmers and musicians in developing countries surely have far less access to and information about available IP protections, even if their countries do have robust IP laws. But the solution here, as Prof. Sunder recognizes, is a matter of information, not changes to substantive law. That's not a problem, of course - the observation is useful, and access to law is surely just as important as formal content - but it is a narrower argument than the "strong" version described above.
Other commenters asked about the examples of derivative-works creators Prof. Sunder discussed, like Danger Mouse and YouTube mash-up artists. The question of how payments and license terms should flow between creators of "original" works, mash-up artists, and even meta-mash-up artists that combine already-derivative works is really hard. Romantic ideas about authorship aside, no work is so unique that it owes no debt to those that came before it. How much is too much? Where in the chain of cultural debts do we draw the line beyond which permission is necessary? While Prof. Sunder is in good company in identifying these problems, her new perspective on the purposes of IP law did not yet seem to offer a solution that would cut the Gordian knot.
Maybe it reflects an inability to let go of the law & economics account of IP, but I find myself asking the same question in all of these situations: who gets paid? It ultimately seems like that's the only thing that matters. At the WiP talk, we saw only a small part of Prof. Sunder's book. I look forward to her answer to that question in the parts to come.