I have a couple of specific comments on Rob's notion of "professional creatives," and a more general one on Madhavi's comprehensive notion of "culture.
Given that the parameters of evaluation of the quality of cultural artifacts are notoriously difficult to define (and probably impossible to fix in any non-local sense), I'm a bit surprised by Rob's assumption that there are people -- his "professional creatives" -- who seem naturally endowed with (or professionally selected for) a capacity to deliver "products that become cultural icons and shared touchstones." Professional creatives are those who can produce the cultural canon.
My first point is that Rob's narrative seems to internalize and reproduce the logic of IP that Madhavi is trying to question. Better than traditional authors, professional creatives are endowed not only with a unique personal expression but also a high-quality one. They produce work that is not only distinct, but also trend- and canon-setting. The fact that their work may be the result of a lot of schooling, observing, and copying others is not foregrounded in this picture. He mentions, instead, the kind of environment professional creatives need after having given birth to their works: "large-scale organizations often needed to assemble their individual contributions into sophisticated, refined and polished form"). Rob may have compressed a longer and more complex narrative down to a few lines to make it fit the blog format, thus making it less nuanced than it really is. Still, in the form presented here, social entities and resources are mentioned only as part of the process through which the work is refined after being conceived rather than of the process leading to its conception. When it comes to the work of the professional creatives, the traditional notion of authorship based on individual personal expression is left, it seems, unquestioned.
Second, Rob's picture of cultural production seems to imply a high-culture/low-culture hierarchy which is then coupled with a trickle-down model of cultural diffusion. There is no doubt that beliefs in distinctions between high and low culture are necessary to keep a market economy going. Without accepted hierarchies of cultural taste it would be very hard to charge $300 for a pair of Prada eyeglasses. I am a great admirer of Prada products but would not assume (as Rob seems to) that the high quality of a work provides, by itself, the benchmark for establishing hierarchies of cultural value and quality. It is as if the appearance of high quality work (like the one done by the professional creatives) carries with itself a whole metrology to assess what's high quality and what's not. I'm no expert on these matters, but there is a substantial body of empirical work showing that high culture is not born but made. It is the effect of specific patterns of cultural circulation, taste formation and education, the work of experts (such as reviewers), etcetera. (Pierre Bourdieu's Distinction is an example of this literature). In sum, it is not that "high culture" comes into being as preformed high-grade building material to be used by lesser authors for their further reelaborations, but rather becomes construed as "high" as a result of being cited, appropriated, consumed, praised, or even despised as an example of elitist taste.
But while I don't see anything essentially "high" in the quality of the work done by the professional creatives, that assumption is, I think, crucial to Rob's clever attempt to have his cake and eat it too. By making that assumption, he can say that IP protection works for and should be granted to "professional creatives" (and to the large cultural businesses in which they operate), while also allowing less professional authors -- the "crowds" in "crowdsourcing" -- to produce some kind of culture by working, literally, in the interstices of the canon. They may not be really free to do that kind of culture work, but IP enforcement costs are sufficiently high to create, by default, narrow spaces in which they can operate in the shadow of the law. This is a neat picture where everyone wins by playing different games, almost according to some "ecological" script -- a "cultural environmentalism" in which the work of the professional creatives (not the public domain) is the key resource for sustained downstream cultural production. Still, setting aside the elegance of the construction, there remains a conservative streak in Rob's apparent commitment not to question the traditional notion of the author, and by relegating newer and more complex figures of the author to operate in semi-legal spaces, doing what seems to be second-tier work.
That said, I am not sure I buy the capacious notion of culture that Madhavi is proposing either. I have great sympathy for her call to establish a better fit between IP law and the process of cultural production as described and conceptualized through cultural and social theory rather than through economic models. Still, I think we need to avoid reifying the notion of culture (for the same reasons that we should avoid reifying the figure of the individual author). I do not have a real problem with the pervasive invocations of "culture" in critical discussions of IP if that's a strategic move to legitimize the importance of the work of any kind of author so as to erode the hold of the figure of the romantic author. Culture works well as a capacious, catch-all term to include all kinds of productions. So far so good. But what happens, I think, is that if one start taking "culture" too seriously (rather than treating it simply as a tactical term to criticize traditional individual forms of authorship), then it becomes pretty opaque pretty quickly. It also starts drifting from something that describes a product to something that designates a producer. When I read "cultural production" I'm not sure anymore whether it's meant to refer to the production of culture or to something that it has been produced by culture. It seems to me that, at this point, "culture" may have become as occult as "personal expression".
I believe that Madhavi would agree with me about several of the problems generated by holding on to a traditional notion of culture. The work she has done (by herself and with Anupam Chander) has dealt with great clarity with the problems surrounding the notion of "traditional knowledge" -- a notion that is in many ways similar to "culture". So why, after having deconstructed so nicely the notion of traditional knowledge when applied to non-Western contexts, is she putting forward culture (and the theorizations of that concept) as a tool for a better understanding of creative production?