I first want to thank Rob Merges for his deeply thoughtful engagement with my post. His incisive introductory remarks evince an openness to considering alternative points of view, regardless of his priors and where the future is unknown.
I want to make three points on this second day of our debate.
First, Rob’s post suggests that there is far more agreement today than I believe there was even just three years ago on the broadest claim I am making here: that the narrow economic approach to IP proves insufficient as a comprehensive approach to this law. Professor Merges suggests that he seeks to find answers to intellectual property’s troubles not only in more economic studies but in the writings of the well-known law firm of “Locke, Kant, & Co.” Today even economically oriented theorists of this law recognize the limits of the narrow “intellectual property-as-incentives” story. In his post Professor Merges tellingly reveals that he has “come to see that the optimal number of IP rights is not something that economic analysis is really equipped to determine, at least not with the current set of tools we have available.” I want to reiterate Rob’s statement about the limits: “economic analysis is inadequate to the very difficult task of determining exactly ‘how much’ IP is enough, and in some cases exactly how IP rights ought to be crafted and limited.” Economics is relegated, in Professor Merges’s account, to lower level administrative duties, not “foundational” questions: after we decide whom to reward, “economics can be "very helpful … in figuring out how to spend as little as possible administering the rights, collecting the money, and distributing payment.” The fact that today IP scholars of all persuasions can increasingly agree on the need to broaden our ambit is significant and should not be understated. The time is ripe for reform, not only of law but also of theory.
Second, I seek to clarify that in calling for more attention to social and cultural theory, I do not mean to reject economics. Professor Merges urges that economic tools are well-suited to certain tasks, and I wholeheartedly agree. Economic analysis, for example, is quite helpful in identifying market failures that arise from collective cultural use or production, or cultural production that is odious to authors. Of course, identifying a market failure does not mean that our only goal should be to correct it through law; other values might be at stake as well. My own critique, which among other ideas builds on economist-philosopher Amartya Sen’s broad conception of “development as freedom,” adopts a broad economic view that recognizes more fully the rich interconnections between economics and culture. We need to consider the ways in which many tools and lenses, including economic ones, may illuminate the role of creative knowledge in human life, and how best to regulate its production, circulation, and distribution in a context of globalization and also deep social inequalities.
Third, Professor Merges’ turn to Locke and Kant for understanding intellectual property would raise concern in some scholarly circles. The fear is that if we abandon the narrow utilitarian “IP-as-incentives” framework, we open ourselves to natural rights theories of intellectual property analogous to real property rights. Indeed, much of the resistance to speaking of intellectual property in broader terms is that such rhetoric will likely lead to stronger, even perpetual, intellectual property rights—that is, an even more maximalist IP law than we have now. On that latter point first: without being cavalier as to consequences, I suggest that as scholars we must not be afraid of new descriptions simply because they may lead to more or less intellectual property.
That said, my own view is that social and cultural theory would be as likely to limit intellectual property rights as to grant them. I do not adopt a natural rights view. I advocate instead a consequentialist approach to intellectual property law in the new century. Under my view, intellectual property is not a right, but a tool for facilitating central human capabilities, from health to education, cultural participation, cultural exchange, and livelihood.
Indeed, Professor Merges is concerned about livelihood—he laments the risks to newspaper reporters, freelance photographers, and musicians—and I share his concern.
But I am also concerned about the livelihood of new creators—the free laborers and content creators on the Internet—and also certain classes of traditional creators who have often been overlooked by the intellectual property system—the folk musicians, designers, and cultivators who have labored and created without economic recognition.
It is at this point that the crucial question of how we define culture becomes important—indeed, Professor Merges spends quite some time in his post on this topic, and I dedicate a substantial portion of my forthcoming book to the topic. Professor Merges and I agree that behind the cultural artifacts are people and communities who make them. But where Professor Merges seems to define culture as emerging from a professional class that has refined taste (and presumably talent), I offer a more democratic view of culture. My view is grounded both in theory, from fields such as anthropology, cultural studies, and critical philosophy, and in emerging social practices. Where the dictionary may continue to define culture as refined traditions learned by individuals in discrete societies known as “cultures,” anthropologists and social theorists define culture as processes of individuals interpreting and making meaning in the world. To use the phrase popularized by Clifford Geertz, culture is the “webs of significance” individuals spin to create a home within their surroundings. Moreover, the Internet and new technologies have sped up this shift in our understanding of culture. On YouTube for example, Muslim men and women post videos contesting popular representations of Islam and declare themselves what it means to be a Muslim, at least to them.
Recognizing democratic participation in making cultural and scientific knowledge has normative value in its own right, and economic value in the Knowledge Age. We must critically probe which authors and inventors law recognizes, which are left out, and why. Professor Merges seems to presume some creators, the “creative professional,” more deserving of protection than others because their creations are “original” while those of remixers are derivative. But this distinction overlooks the extent to which all creativity is derivative. In fact, the world’s most famous copyright owner, Disney, has made its fortune often mining the works of past creators that have passed into the public domain. “There would hardly be a Disney at all if not for the works by Rudyard Kipling, H.C. Andersen, Victor Hugo, and Robert Louis Stevenson, all of whom make it possible for Disney to make animated features of wolf-boys, mermaids, hunchbacks, and Long John Silver,” Eva Hemmungs Wirten reminds us in a new book. Wirten criticizes Disney’s hypocrisy for benefiting from iconic works that quickly fell into the public domain under old copyright laws with short copyright terms, while holding its own works tightly and nearly into perpetuity. If current law had governed when Disney made The Jungle Book, the corporation would have had to wait another 40 years before releasing the film or sought permission from Kipling’s heirs.
Again, I thank Professor Merges for his usual thoughtful analysis, and look forward to hearing from him again as the week progresses.