IP: Social and Cultural Theory (Rob Merges)
I want to respond to some of Madhavi's points about culture. Then, even though it is a topic that is not well suited to the blog format, I want to say a few quick things about utilitarian vs. rights-based views of IP.
Madhavi is right that my thoughts on culture include a greater concern for high quality content, produced by what I call "professional creatives." She seems to imply, though, that I understand these high-quality products to be coextensive with "culture". She says I view culture as "emerging from a professional class that has refined taste (and presumably talent)," while Madhavi herself "offer[s] a more democratic view of culture." This is not quite accurate.
I take the participatory, democratic aspects of culture very seriously. I have devoted some effort to thinking through how the inherited legal structure of IP rights can be adapted and modified to encourage the many new avenues of participatory creativity -- the wikis, open source projects, and other forms of what are called "crowdsourcing." (see for example my essay on The New Dynamism in the Public Domain, 71 Chi. L. Rev. 183 (2004) (need for a simple way for creators to dedicate works to the public domain); Locke for the Masses, 36 Hofstra L. Rev. 1179 (2008) (need for property theory to account for aggregated labor of crowdsourced products). But -- and here is where I differ from Madhavi, and a fair number of contemporary IP scholars -- I *also* believe that IP policy has a special obligation to promote and encourage professional creatives. Without the efforts of people devoted full-time to developing and expressing their considerable creative talents, and the large-scale organizations often needed to assemble their individual contributions into sophisticated, refined and polished form, I believe our collective culture would suffer enormously. It is these creative professionals who bring us many of the products that become cultural icons and shared touchstones. Without them, we would have far less shared material to work with. True, we all in some sense "make culture," and some of what these professionals work with are received myths, legends and ancient stories. But without high-quality contemporary products in accessible form, there would be a lot less material out of which we can construct our shared culture. This is why I see these professionals as so important. And because, when they are effective, their works appeal to a mass audience, I do not see this as a particularly elitist view. They operate, after all, in a market economy. So their works have to (in many cases) invite acceptance from a wide audience. And given the rules of IP law, a wide array of participation is also open, from commentary and criticism to emulation (of ideas, not expression of course) and even parody. One can say a lot of things about popular culture in the US, but "undemocratic" is not a label that too many would apply. If it is elitist to show concern for the care and feeding of professional creatives, it is a strange form of elitism: solicitude for the people so often accused of foisting low-brow entertainment on the American people!
Well, maybe it is not undemocratic. Maybe it is just wrong. Why do professional creatives deserve special protection? After all, protecting their works deprives other people of freedom. Freedom to use those works as they see fit -- to mash them up, incorporate them in new (possibly subversive) works, *appriopriate them* and make them their own. Freedom to participate in the making of their own culture. How can this deprivation of freedom be justified?
Two ways I think. First, by recognizing the importance of high-quality content to a shared cultural experience. And second, by being critical of the claim that protecting this content makes major inroads on freedom. The first point I described earlier. A few words about the second point here.
Freedom is constrained by IP law, no doubt about it. But not as much as many believe. IP rights are not generally self-enforcing. So the first protection against serious inroads on freedom is the stubborn fact of high enforcement costs. This prosaic fact of life for IP owners has very important ramifications for the question of user freedom. The de facto zone of freedom for consumers of IP -- the zone of participatory culture, if you will -- is really quite large. An overly formalistic focus on the "law on the books" (as opposed to "the law in action") often obscures this. But it is a fact nonetheless.
The second way freedom is protected is through the market. People like freedom. Businesses try to give people what they like. So if consumers prefer cultural products with a little extra freedom thrown in, some enterprising business is likely to give it to them. Which means that those who sell cultural products that significantly restrict freedom will either have to make those products especially attractive (to offset the loss of value to consumers occasioned by the greater restrictions), or change their policy on restrictions. Simple as that. Put another way, there should be plenty of content available for remixing, mashing up, or otherwise using quite freely. Some will come from commercial companies, other from amateurs who like remixing and want to promote it. Not all content will be so freely given out, but a fair amount of it will be. Where certain works are so canonical that cultural participants feel they must reference the works, i.e., there are no available subsititutes with fewer use-restrictions attached, IP law still allows criticism (e.g., an essay or entire website devoted to "Barbie as Ideology"), commentary (an essay on "Countering the Limiting Vision of 'The Little Mermaid'"), and even parody (a play lampooning Hogwarts Academy and the Harry Potter stories). But commercial remixes of canonical works can be prevented by IP law. Does this restrict freedom? Yes, but for a good reason (to support canonical works) and in a limited way (one may always appropriate ideas from these works, and incorporate those basic ideas into one's own original work; criticize and comment on them; and parody them). In my view, these restrictions on freedom are limited, but insofar as they exist, fully defensible. I understand that some people feel that if they cannot physically mess with content, and put their stamp directly on it, they feel deprived of an important form of freedom. But I believe that forcing them to work around these canonical works, to comment on them without directly copying elements of them, is not too high a cost. It is the cost of recognizing the rights of creators of these works. Rights always come with burdens, and in my view these burdens are not so great so as to justify undermining those rights.
This last point brings me back to utilitarian versus rights-based views of IP law. The classic critique of utilitarianism applies to IP I believe: even if it could be shown that "the greatest number" of people prefer a low level of IP protection, some creators of some works should nevertheless retain a claim that transcends this aggregate group preference. In other words, we should attend to our language when we talk about "IP rights." They really are rights. If we mean what we say -- and I think we should -- then they do not depend on a group calculus for legitimacy. So if that calculus is missing, we need not and should not say that the legitimacy of IP rights is still up in the air. In addition, even if such a calculus were to come into operation, that should not be the end of the discussion with respect to IP rights. Even if an aggregate welfare analysis dictated no IP protection for certain works, in my opinion we should stop and consider whether the work's creator deserves a right-claim over the work. Maybe a (hypothetical) Rawlsian procedure should be applied, maybe we take a Kantian view (whether granting rights would be consistent with the freedom of all other members of society), maybe we ask the Lockean question (did the creator mix her labor with preexisting material in the public domain, and what effect would a property claim have on subsequent creators and other third parties). Whatever form it took, I have come to see that the question of IP is about more than just optimizing cultural outputs and balancing the economic preferences of creators and consumers. It is -- also, but importantly -- a question of rights.
In the next entry, a few words about IP and economic development.