IP: Social and Cultural Theory (Rob Merges)
Madhavi Sunder’s initial essay travels a wide landscape. The nature of the blog medium, of course, means she has time enough only for a few stops on the journey, but they are suggestive of the richness and intricacy of the overall landscape – the contemporary terrain of intellectual property (IP) law and policy. I am going to shadow Madhavi for a few of these stops, reviewing some of her suggestive ideas. But more importantly, I want also to give another view – my personal view – of the landscape she describes. My goal here is not to redraw the map Madhavi is making, but to give the reader a different orientation within it. What I want to provide is not counterarguments so much as an alternate key or legend; not a different frame, but a reorganization drawn from a few points on my personal compass. (A fuller version of these comments -- my own map, so to speak -- will have to await the publication of my own book, "Justifying Intellectual Property," from Harvard University Press next year.)
Professor Sunder’s main point is that economic analysis of IP is too narrow; it fails to capture some important things about what is happening in the IP landscape, and why it matters. And what is happening, she says, is that the conditions under which culture is created are changing – and changing fast.
She is right that 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. I have 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. (That's why I have been delving into Locke, Kant, and Co. in researching my own forthcoming book.)
But to say that we need to expand the standard tools we use to think and talk about the foundations of IP policy is not the same at all as saying what shape that policy ought to take. It is not even necessarily the same as saying that we ought to reduce or diminish the role of economic analysis. Economic tools, in my view, are terrific at carrying out policy directives. They are just often indeterminate at the operational level when it comes to answering foundational questions. When we ask too much of them, they will of course fail. So we as a society may decide that rewarding writers, filmmakers, and the like, is a good thing to do. At this point economics can be very helpful, not only in helping assess the direct costs of these rewards on others, but also in figuring out how to spend as little as possible administering the rights, collecting the money, and distributing payment.
But if we need something beyond economics to answer the big foundational questions, what should that something else be? Professor Sunder offers social and cultural theory. This promises to move the conversation beyond a focus on mere "products" and into broader dimensions of participation and collective generation of culture.
I am all for a broader discussion. I have just written recently about how I see certain aspects of IP scholarship tending toward a technology-centric worldview that turns the products of creativity into mere "inputs," at the risk of shortchanging creators of those works. See Robert P. Merges, The Concept of Property in the Digital Era, 45 Houston L. Rev. 1239 (2008), preliminary versions available at ssrn.com and bepress.com. Is this what Professor Sunder means by cultural theory?
I am not sure; I will await her book-length treatment. In the meantime, I can state with certainty my belief that IP policy has a lot to do with culture as I understand it. To see what I am getting at, consider the word culture itself. The Latin root here (instructive, as always), is cultura, meaning originally of course the raising and nurturing of crops for food. So there is sustenance, and feeding, at the core of this concept. The Oxford English Dictionary defines culture as: “The training, development, and refinement of mind, taste, and manners; the condition of being thus trained and refined; the intellectual side of civilization.” An alternate definition is: “[T]he civilization, customs, artistic achievements, etc., of a people, especially at a certain stage of its development or history." So from a root of sustenance and nurturance, to the idea of training, refinement, and achievement -- this is what culture seems to be about.
It follows that cultural theory should tell us something about different forms of culture, but also how culture comes about, the conditions under which it is nurtured or made. Here I think Professor Sunder, joining with other contemporary voices, sees us at an inflection point. "Passive" culture is passe. Participatory culture is the future. The way culture is made and transmitted is transforming at the present moment in the crucible of technological change and diffusion. A new moment in time has arrived, and a new type of culture has arrived along with it.
Again, absolutely right. Professor Sunder's map shows us quite accurately where we are on the landscape. And it is up to date, with all the new roadways and features right there to see. Everyone can see that remixes abound today; YouTube provides an instant outlet not only for my strictly original videos, but also for any funny, ironic, or weighty "mashups" I want to make of someone else's material. And so on with blogging, music mashups, etc., etc.
What I find interesting, however, is how the old features appear on Professor Sunder's map. Older varieties of cultural artifact are now a jumping off point for new forms of participation; they are no longer just "incontestable tradition or canned commodity." A lot could be said about this idea that traditional cultural artifacts can be described as instances of incontestable tradition or canned commodities; it is really very interesting. But I will limit myself here to two points: (1) this sounds a good deal like it is treating items of "traditional" culture as an "input" into a transformative, participatory process -- which runs into the objection that Professor Sunder herself raises earlier, about treating the products of intellectual creativity instrumentally, in the manner of an economist; and (2) it tends to take the existence of cultural artifacts as given ("tradition") or at least trivial ("canned commodity"), thereby "flattening" them into a bland background that serves primarily to emphasize the dynamic "foreground" of the products of today's participatory culture.
Both points are a matter of narrative emphasis, in a way. In Professor Sunder's account, the dynamic movement happens when people interact with or participate in culture. The cultural artifacts themselves are bracketed in this account; they appear as static starting points for the real action in the story. The story I would emphasize -- the way I would re-orient the map, so to speak -- places these artifacts front and center. I would treat them as important entities in their own right, and not mere "inputs" into others' creative process. I would not want to completely bracket consumers, users, viewers, audience members. But I would not want to feature them only, either. Put simply, when I see a book desribed as an "input," I imagine the author (who sweated over every chapter, even every sentence if it is a good book) saying "that's no 'input,' it's not a bushel of wheat or bag of potatoes -- that's *my story* you are talking about!"
Put another way, I do not take high-quality cultural artifacts -- books, films, plays, videos, paintings, etc., etc. -- in any sense for granted. They come from somewhere; people make them. The conditions under which these creators operate matter to me, which is again why I do not just assume they will appear, in high-quality finished form, ready for me and others to consume, learn from, participate in, or the like. I would also not assume that the only way to argue with or supersede or transcend or otherwise "contest" a high-quality work of tradition depends on faithfully replicating all or part of it first. Some ways of contesting artifacts might involve this step; but not all I do not think.
Again, there is much more to say here. But let me make one final point, which I will try to elaborate in a subsequent post. I think IP policy has as one of its central functions to attend to the care and feeding of creators of original works. I believe also in participatory culture; and I think many wonderful experiments along these lines are being run as I write this. I am concerned (maybe more concerned than Professor Sunder, though it is hard to tell because the conditions for creating "traditional" and "commodity" culture are somewhat outside the map she is working from) that an over-emphasis on the conditions of participation may significantly worsen the conditions for original creativity. This is especially true given some basic facts about participatory culture (it is popular, so there are many people and companies who willl glad give their cultural artifacts away to those who want to participate in them, meaning those who do not want to give theirs away will not be depriving people of all chances to participate; it is costly to police participatory culture, so many instances of it will take place with no legal consequences at all -- in other words, enforcement cost will guarantee many opportunities for participation, so there is no need for the law to do so, especially if that would damage the conditions under which professional creatives work.) The rapid decline of many outlets for writers (small magazines, feature departments at newspapers, even many newspapers themselves); the reduction in viable ways for musicians to make a living outside the grind of perpetual touring; the declining market for professional free-lance photographers; these and other developments make me nervous about current conditions for creating culture. Ralph Waldo Emerson, writing in his Journal on 24 Nov. 1910, said “It seems to me that the circumstances of man are historically somewhat better here and now than ever, – that more freedom exists for Culture.” (Emerson's Journal, v 4, p 371, quoted in the OED definition of "culture"). What could he have meant about being more free, writing so long before today's participatory culture? Speaking as a writer, trying to make a living while practicing his craft, he seems to have meant this: that in the relatively prosperous (for some, anyway) economic climate of early nineteenth century America, he and writers like him felt more autonomous, more able to shape a career as a creative professional. This is an important -- I would say, a crucial -- element of a healthy, thriving culture. I will explore it more fully later this week as I continue to traverse the map Professor Sunder has laid out for us.