IP: Social and Cultural Theory (Rob Merges)
It has been great fun reading, thinking about, and responding to these posts. My thanks to Madhavi and all the contributors, who have offered some truly stimulating ideas and comments.
I want in this, my final post, to pick up on a thread first developed by Madhavi, and periodically referenced by other contributors: the role of IP in what is sometimes called "the development agenda." Now, "development," like "culture," is wide-ranging yet deeply ambiguous. So let me clarify a bit how I understand the term.
At the most basic level, development is about economics. It is about providing food and meeting the other basic needs of the world's poorest people. At this level, IP policy has a small but important role. (The alleviation of suffering, even if only modestly, is inherently important.) For example, when it can be shown that IP rights are getting in the way of basic sustenance, those rights have to give way. If it is clear, for example, that patents on a certain foodstuff are interfering with sustenance in some demonstrable way, the patents must not be enforced. This dictate of distributive justice is actually built into any reasonable theory of property rights -- any theory that aspires to hold a place in a liberal world society. It is for example present in the foundations of John Locke's theory of property. His charity proviso actually says not just that property claims must yield in the face of abject need; it says that the poor in these circumstances actually have a claim on the title to some portion of the property held by the well-off. Destitute status is not, in other words, a condition outside the institution of property rights that modifies the force of those rights. It is built into the fabric of the rights themselves.
When might this matter in the world of IP? When it can be shown that an IP right actually stands between the very poor and their sustenance. It may apply, for instance, with respect to patents on certain medicines. (Though here, complications of corruption, trans-border trafficking in drugs, and intergenerational equity must also be considered, in my opinion.) And it may apply when patents over food products create palpably worse conditions for agriculture in poor countries. There are a lot of excessive claims about these circumstances, from my point of view, and much speculation about how IP rights in one country, or potential IP rights, might create these conditions. At any rate, only in actual cases where IP is enforced, or is likely to be enforced, in a way that interferes with sustenance or survival, should IP rights be superseded.
I have talked about sustenance and survival. Where does this leave us in our discussion of culture? In an interesting place, I would say. I understand that culture is important to human flourishing and development -- development in the sense of growth beyond the realm of the merely physical. Yet even so, I think we have to differentiate between IP rights that interfere with actual sustenance and those that interfere with other aspects of development. The claims of those excluded by IP rights seem to me a bit weaker in the case of non-physical or higher-order development. In Lockean terms, these excluded people still have a claim on some portion of the property of the well-off that could be used to facilitate cultural, i.e., non-physical human development. But maybe not quite such a strong claim. This would then, in my mind, justify greater concern for issues such as the possibilities of cross-border trade (i.e., arbitrage from a country with weak or nonexistent IP enforcement) and downstream effects (e.g., on incentives to produce goods that contribute to cultural development). This might sound vague, so let me be more specific: I think international IP law might permit copying of textbooks needed for cultural development in very poor countries (e.g., history books, or sheet music, or novels, or books on how to organize amateur drama productions). But the claims on the other side -- for example, claims by publishers that copies of these books are being imported into other countries, where they compete for sales with authorized copies -- ought in my view to be given more weight in the case of these books than in the case of life-sustaining products. Let me be clear: Publishers' and authors' claims are not trump cards. They are considerations that count. I understand that some people who might make good use of these books may sometimes come out on the losing end of this sort of balancing. And I regret that. But to me, to allow these claims absolute supremacy over those of the authors of these books in all cases -- note these limitations, please! -- is to fatally undermine what it means for those authors to have rights. In other words, cultural development is important; if it were not, the needs of the destitute would matter not at all in the calculus. But outside the realm of basic human sustenance, development is not *by itself* important enough to automatically trump the rights of authors. Cultural development is an interest to be balanced, along with that of creators; whereas human sustenance should never be balanced.
I should also add this: the developed world should make it as convenient as possible for authors and publishers to give away books and other material that helps with cultural development. This is not only the right thing ethically (as evidenced by the fact that many property owners do give their works away, and decline to enforce their IP rights, in poor countries). It also makes good business sense -- assuming that arbitrage can be kept to reasonable levels. (No one likes to be played for a fool -- to have their works copied on a widescale basis in a poor country, only to have them turn up as pirate copies in a country where most people are perfectly capable of paying the market price.) Preventing this arbitrage is therefore perhaps the single most important policy that IP owners can promote to further cultural development. For with reasonable border protection in place, an IP owner can authorize or at least acquiesce in widescale copying to promote cultural development in poor countries, while maintaining reasonable financial returns where they are feasible. The IP owner can have her rights, and waive them too, in other words. Indeed, this ought to be the goal of all developed-world governments: to make the world a safe place for IP rightholders to acquiesce in widescale poor-country borrowing of the products needed to encourage cultural development. And if my view of developed-world IP holders is too optimistic, a more muscular right to copy, not so dependent on widescale voluntary waiver, would make sense if borders are reasonably secure.
Madhavi's example of trademarks for Ethiopian coffee varieties raises a closely related distributional issue. This is the question of whether developing countries can directly benefit from domestic IP rights. Here the issue is not how the interests of developing countries are served by inroads on IP-covered products from elsewhere. Rather, it is how IP rights over *their own* products can help in economic development and the promition of cultural autonomy. in several important ways. Indeed, I would argue that Ethiopian coffee can serve as a vital exemplar of an important theoretical point. The early post-TRIPs literature fashioned a narrative in which IP was associated with the developed world; opposition to IP thus aligned with the interests of developing nations. The case of Ethiopian coffee is not unique. Products based on native plant species, recordings of indigenous and indegenous-influenced music, and various works based on traditional myths, stories, and craft techniques, are just a few of the many examples that might be cited. These instances inject a subversive twist into the earlier narrative: IP is now something that can help, and not only hurt, the interests of the developing world.
Moreover, to return to an earlier theme in the discussion, I believe that the development of IP rights covering products that bring profits to the developing world can help buttress the view that intellectual property should be thought of as a real *right*. The literature on human rights has sought to establish what it means to elevate the interests of the very poor to the status of rights. So it might make sense, if IP comes to be associated with the interests of the developing world, to more naturally think of IP *as* real rights.
There is more to say on IP and development, but it seems this is a good place to wrap up. As I mentioned earlier, these and other topics will be covered in more depth in my own book, "Justifying Intellectual Property" (Harvard Univ. Press, forthcoming 2010).