IP: Social and Cultural Theory—Closing Thoughts (Madhavi Sunder)
It is difficult to confine discussions of intellectual property to a handful of days, and indeed, we’ve stretched beyond the week I had originally planned. But during that time, we have been treated to the insights of leading figures in intellectual property discourse, Mario Biagioli, Rochelle Dreyfuss, Graeme Dinwoodie, and Rob Merges, and even been graced with visits by law and economics scholar Omri Ben-Shahar and numerous helpful, and provocative guest commentators. I am grateful to all of them for engaging this topic so eloquently.
The issues have ranged far and deep: from whether economic theory is capacious enough to define the scope and limits of intellectual property in a digitized and globalized information regime; to whether economics can usefully learn from sister disciplines such as anthropology, science and technology studies, and literary theory. We deliberated on the equally grand and ambiguous concept of “development” and its relationship to culture and intellectual property.
While we have all agreed on the important insights and methods of economic analysis for intellectual property law, even the economically oriented scholars among us are cognizant of its limitations, evincing an openness to insights from diverse fields as we think more deeply about law’s role in regulating and promoting cultural production. The challenge going forward will be to better recognize the reemerging plurality in intellectual property scholarship and to consider how social and cultural analyses may better illuminate our economic insights, and vice versa.
In my final post of this mobblog I wish to response to some specific issues raised by Rob Merges and Graeme Dinwoodie in their latest posts.
In his final post Rob makes some important and notable statements about the limits of intellectual property rights. Rob writes that intellectual property rights ought not to be enforced “in a way that interferes with sustenance or survival.” (This echoes the famous case of State v. Shack in real property law, in which the New Jersey Supreme Court limited the right to exclude in order to permit an encroachment promoting health and legal information, a relationship upon which I elaborate in my Stanford Law Review article “IP3.”) Going further, he suggests that “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 …. It also makes good business sense -- assuming that arbitrage can be kept to reasonable levels.”
I agree with Rob on all these important points. The international intellectual property regime was indeed amended over the last few years to clarify the right of countries to impose compulsory licenses under very carefully tailored circumstances—circumstances designed to limit the arbitrage Professor Merges rightly worries about. But many countries do not have the will to exercise the flexibilities offered under law, fearing trade sanctions. And even those that have sought to exercise their rights to protect public health have found roadblocks along the way. When Thailand exercised compulsory licensing authority with respect to two AIDS drugs and an anti-blood clotting drug (Plavix), the United States protested and placed the country on its 301 Report’s Priority Watch List. The Dutch authorities recently seized generic medicines produced in India on their way to Latin America.
Intellectual property scholars in the United States need to continue to lend their authority to efforts to ensure that intellectual property law does not stand in the way of sustenance and survival around the world. (Duke’s Jerome Reichman and Berkeley’s Amy Kapczynski have offered important leadership in this field.) The broader the coalition we can build around this commitment, the better.
Graeme Dinwoodie offers important insights from his fields of trademark law and international intellectual property law. First, he agrees that economic analysis has taken a dominant hold of both descriptions and prescriptions of trademark law. He worries that a narrow economic focus on search costs alone might obscure other important questions. Second, as we develop cultural approaches to supplement economic analysis, he warns against validating all participatory culture practices as ideals; we ought to be cautious about the is-ought distinction.
Given the widespread agreement about the need to bring in cultural tools, we now need to put our backs to the more difficult questions: including, which theories of culture, and how to fashion prescriptive tools and legal doctrines from theoretical insights.
I am indebted to the vigorous contributions offered by the participants in this dialog. Interested readers might do well to watch for Rob Merges’ book (Justifying Intellectual Property, forthcoming Harvard U. P); Graeme Dinwoodie’s and Rochelle Dreyfuss’ book (Achieving Balance in International Intellectual Property, forthcoming Oxford University Press); and my own book, Madhavi Sunder, iP: YouTube, MySpace, Our Culture (forthcoming Yale University Press).