IP: Social and Cultural Theory (Rochelle Dreyfuss)

I am very much looking forward to Professor Sunder's book.  I agree that it's high time to think more systematically about crafting intellectual property law in a manner that takes account of other values.  That is true not only for domestic law, but also at the international level.  The TRIPS Agreement, as part of a trade pact, treats knowledge "products" as commodities.  That makes them easy to trade, but as Graeme Dinwoode and I have suggested in a series of articles (and will treat at greater length in our forthcoming book, Achieving Balance in International Intellectual Property, to be published by Oxford University Press), the trade perspective tends to lose sight of such matters as cultural development, changes in the creative environment, and human rights, including the right to health.  As Madhavi suggests, current law also fails to deal effectively with collaborative production and open innovation.  Indeed, I've written a couple of articles on the collaboration issue in science.

However, like other bloggers, I am somewhat puzzled by the dichotomies that are drawn here.  Perhaps it's a matter of degree, or perhaps there are a few scholars who think about IP as uni-dimensionally as Madhavi suggests.  But it's hard to imagine there are very many.  IP hardliners (protectionists) in both patent and copyright law regularly confront non-economic incentives.  On the science side, it's impossible to miss the impact of university research on technological development.  Yet, in that milieu, the norms at play are ones that Madhavi would likely not classify as economic.  More generally, it is so difficult to fully appropriate economic benefits in basic science that--as Scott Stern puts it--scientists pay to be scientists.  Paradoxically, some of the copyright high protectionists focus even more heavily on non-economic interests.  They tend to favor moral rights--rights that inhibit economic exploitation because they protect other values, such as the author's personality and the integrity of her contribution to the culture.

The story on defenses is similar.  Madhavi specifically mentions fair use as capturing only the problem of market failure.  Perhaps she is thinking of Wendy Gordon's article, Fair Use as Market Failure.  That was a pathbreaking piece because it clarified what was going on in a whole series of cases.  However, the article never suggested that market failure was the only justification for a fair use defense; most of Professor Gordon's work is far too jurisprudential to be classified as primarily focused on economics.

The same is true on the other side of Madhavi's line.  For example, even the most ardent believers in sharing technical knowledge understand that developing new pharmaceuticals is costly and that the economics of the industry matters a great deal.  That is why people like Thomas Pogge, Jenny Lanjouw, and Yochai Benkler have worked so hard to structure exclusive rights regimes that generate funds for working on neglected diseases.  Most open innovation works along parallel lines, with the open community supported by entities that rely on intellectual property rights (IBM's relationship with Linux is an example).  Furthermore, as Niva Elkin-Koren has shown, the Creative Common is not actually being used to put works into the public domain.  To the contrary, although most users permit noncommercial uses, if there is money to be made, they often want a piece of the action.

Not only am I puzzled by the descriptive claim, I also wonder about the strategy.  There is a great deal of hard work to be done to bring these perspectives on intellectual property together.  Even if scholars are not as resistant to broadening the debate as Madhavi's initial post makes out, right holders are well heeled and powerfully organized.  They exert disproportionate power in judicial, legislative and international arenas.  Since that puts more pressure on us academics, I have to wonder whether it's wise to polarize the debate.  Better would be to tease out from current practice how other values are now being accommodated, to find approaches that foster the new types of creativity that technological progress has made possible, and to learn from the studies that Eric von Hippel, Chris Sprigman, Kathy Strandburg and others have done on creative communities that operate outside the traditional intellectual property paradigm.  I have high hopes the book's real focus will be on these or other solutions.