IP: Social and Cultural Theory (Graeme Dinwoodie)
It's hard coming late to this conversation, because so many complex issues have already been raised. But, if it's not too selective, I want to focus on just two: the importance of consciously separating descriptive and prescriptive questions as we broaden the debate in the ways that Madhavi suggests; and, building upon what Rochelle Dreyfuss has mentioned about our forthcoming book, I want to emphasize the international dimension to the dynamic on which Madhavi has focused.
In her original post, Madhavi suggests that her critique of the "narrow" focus of current IP thinking is both descriptive and prescriptive. The ensuing discussion has covered both descriptive and prescriptive questions. But there are dangers in eliding this distinction. (I think we all do it now and then, but it seems especially easy to do when engaging in economic analysis in IP). We see this, for example, in trademark law. If one goes back 50 years, the functions of trademark law were expressed in relatively uncontested terms: ensuring consumers get what they want, and cracking down on "pirates and cheats". This is broad language, allowing the injection of a range of values that cut either in favor of or against broad trademark protection; in fact, if we now look at the mid-twentieth century scope of protection, it looks relatively confined. But in the last thirty years that justification for trademark protection was reformulated in the language of law and economics, and in particular in the language of search costs (including by the Supreme Court). Search costs surely are an important part of the description of how trademarks function, and also one reason why prescriptively we offer them legal protection. But it has too quickly become an all-encompassing prescriptive guide: if certain conduct increases search costs, it should be prohibited; conduct that doesn't clearly increase search costs should be of no concern to trademark law. And there is a tremendous attractiveness to this: we don't have to work out who are "pirates" and "cheats" and we don't have to consider "what consumers want". But maybe we need to struggle more with those questions, which don't lend themselves so readily to economic analysis.
To return this question to the conversation between Madhavi and Rob Merges, what should we make of changes in the process of cultural production from passive to participatory? I have no doubt that this is descriptively true (though perhaps the shift from past eras is a matter of degree). But is this wholly a good thing? One doesn't have to buy fully Andrew Keen's critique of "amateur" culture to have sympathy for Rob's assertion that IP policy should promote and encourage professional creation, as well as to ensure sufficient room that our culture is not created only by such people. So while we should surely use all available disciplinary tools -- including but not limited to economic analysis --to understand the forces that motivate cultural production, we should also be cautious before validating those practices as ideals.
I am especially conscious of this because of the international dimension to IP policymaking. As Rochelle mentioned in her post, we fear the narrowness of trade-based arguments as the exclusive basis for the development of international IP norms. We elaborate on these concerns more fully in our book. But one cause for our concern is that TRIPS panels to date have too readily conflated economic practices with broader normative justifications for national IP laws. Of course, part of the problem is a failure to comprehend that economic analysis might itself lead to different solutions in different nations; economies are no more universal than "cultures" (even if so-called "cultural" exceptions are typically invoked as exceptions to the homogenizing values of economic efficiency). But scope for national autonomy in IP lawmaking will also be ensured by recognizing that descriptive economic theories should not ipso facto serve as prescriptions for national policymaking that might appropriately take into account broader perspectives.