IP: Social and Cultural Theory – A Reply to the Question ‘Why Culture?’ (Madhavi Sunder)

Mario Biagioli asks why, after spending so much time in my earlier published writings deconstructing the reified notions of “culture” and “traditional knowledge,” I am now offering a cultural theory of intellectual property to stand beside and illuminate the dominant economic account.

The continuing centrality of culture to what makes human life worth living leads me to concur wholeheartedly with the anthropologist James Clifford’s modus vivendi: “culture is a deeply compromised idea I cannot yet do without.” Culture is the sphere in which human beings participate, share meaning, and enjoy life’s riches together, from art to music to literature and technology. And far from becoming less important in modern life, claims for rights to cultural diversity, preservation of languages, and more recently cultural participation only grow and become more boisterous. As Rob Merges helpfully noted earlier this week, culture offers sustenance—food, medicines, etc. But culture is more than that. Culture is an arena for innovation, communicative action, shared community, celebration of difference, and ultimately mutual understanding. Furthermore, as noted in the 2004 Human Development Report, titled Cultural Liberty in Today’s Diverse World, the cultural sphere increasingly has profound effects on other spheres, from politics, to social relations, to economic development. Surely, in a post 9/11 world we are wary of and ever vigilant against crass visions of “cultures” as hermetically sealed off from modernity and the locus of civilizational clashes. Mario’s questions are born of genuine concern about the frequent misuse of the culture concept. But the potential for abuse of the culture concept is precisely why it is so important to elaborate normative accounts that would privilege the values of participation, liberty, openness, fluidity, plurality, and fairness within and among cultural groups today.

Intellectual property conflicts are by no means immune to these issues. As Mario Biagioli has illuminated so well in his own scholarship, a key issue in whether international intellectual property will formally recognize the “traditional knowledge” of the Global South turns on archaic and often misconceived distinctions between “culture” and “nature.” The poor’s knowledge is often considered simply the discovered bounty of nature--age-old knowledge that, remarkably, has remained static over millennia, and thus “raw material” waiting to be turned into “intellectual property” by entrepreneurs, largely from the Global North. I argue that this view fails to recognize the constant innovations of the poor, who are always renewing knowledge and adapting it to modern needs. The traditional silk weaving technology of Mysore, India, for example, now applies great ingenuity to the manufacture of waterproof sarees. In contrast, consider Disney’s successful appropriation of public domain works by Hugo and Kipling; although a similar example of making new from old, we seldom hear questions of Disney’s authorship or ingenuity. 

Theory—from cultural studies, postcolonial studies, and Science and Technology Studies—that critically considers what constitutes “culture” vs. “nature” can help us to better understand the social construction of authorship, and the hotly contested issue of whether and how international IP should recognize the scientific and cultural contributions of the developing world. To date, TRIPS largely reflects the vision and wishes of the North. Going forward, I argue that the global intellectual property regime must take development more deeply into account in the following two ways:  First, we must recognize diverse contributors to culture and science and fairly reward them. This will require the controversial step of rethinking whether some knowledge has been mischaracterized as “public domain.” Second, we need to recognize disparate capacity to produce knowledge in a world marked by deep economic and social inequalities; we must seek to equalize the capacity of the poor to participate in making culture, and in benefiting economically from cultural production. An example is the Ethiopian government’s recent trademark campaign to control the names of its specialty coffees, such as Sidamo and Harar, considered among the best specialty coffees in the world.

If intellectual property is to serve humankind, we need to better understand the process of cultural creation. Economists point out these processes may be impeded by too little or too much property. Social and cultural theory can illuminate how biases in recognizing authorship, and unequal capacity to participate in cultural production can also impede cultural development. In sum, this is not just the domain of economists who study innovation; it has long been the domain of musicologists, anthropologists, sociologists, literary critics, and others in the cultural study business.