IP: Social and Cultural Theory (Madhavi Sunder)

Ah … participatory culture! We are midstream in our week-long mobblog and I am overjoyed by the thoughtful contributions, diverse disciplinary perspectives, critiques, and sage advice being offered.

On Monday I raised these questions: Do we need to expand the theoretical framework for intellectual property beyond a narrow economic analysis to include social and cultural theory? Why has there been resistance to social and cultural accounts of this law? Despite the resistance, are such approaches in fact emerging, and if so, why?

The answers thus far are illuminating, refreshing, and suggest good reasons for hope that our global intellectual property landscape is indeed headed for an era of progressive reform.

First, our “outsider” guest blogger, Mario Biagioli from Harvard’s Department of the History of Science, informs us that for those approaching intellectual property from outside the law (which is a great deal many folks whose analyses of IP have been very important to contemporary understanding), the economic theory of intellectual property is by no means either dominant or a given. His helpful intervention first helps to localize our debate – or at least my initial claim – as one about American legal scholarship of intellectual property, predominantly. Second, in highlighting that the economic approach is not “natural”, he shows that this law and theory indeed “could be constituted very differently” than their current form. I would simply add, and hope it is not taken as a parochial defense of our legal field, that plural approaches to IP need not only come from outside the law. There have been and continue to be broader approaches within legal scholarship -- Pam Samuelson’s work highlighting IP’s concern for access to knowledge, Neil Netanel’s conception of copyright’s central role in a democratic society, and William Fisher’s utopian vision of intellectual property are just a few examples. In her post Rochelle Dreyfuss mentions many more contemporary examples. The goal, as Rochelle herself points out, is to recognize this plurality and to perhaps even try to capture these contributions in some sort of broad cultural and social frame.

I think the most important point Mario raises is that this debate over theory matters because our theories do far more than simply describe the world. The theories take on lives of their own and direct (or, as Mario says, “perform”) our world, making it in a particular image. If our theory of culture is one of tradition, with powerful elites as the drivers and main contributors of culture while the masses passively receive it, then this will be the culture we eventually will come to inhabit, technology notwithstanding. Elsewhere I have critiqued law for often adopting this “cultural survival” approach, where law’s role is to preserve stable meanings and authority against dissent and dilution. A new paper by Barton Beebe analogizing IP law to sumptuary law similarly argues that intellectual property laws problematically enforce status hierarchies and distinctions. I have urged instead for legal decision-makers to recognize—and then facilitate—the value of cultural dissent, or plural and participatory culture.

Rob Merges is his second post in this week’s debate suggests that while participatory culture is important, we may not need law to promote it. Rob is optimistic that markets will facilitate such participation, offering enhanced tools for users to make culture themselves if this is indeed what the public demands. Moreover, Rob suggests that even where copyright owners have rights to exclude the public from using their works, high enforcement costs will mean that many users will be able to make use of others’ copyrights without either permission or payment. Rob seeks to justify the current distribution of entitlements favoring professional creators using a range of arguments, from incentives to Lockean labor theory.

But we could argue the importance of law putting its weight equally on the side of those who would dissent from cultural authorities, or those who seek greater autonomy to play and share in cultural communities, in order to actively balance competing claims and interests. Cultural authorities already have the force of tradition and market power supporting them; excessive legal authority to suppress dilution and change may be overkill. Just as the First Amendment recognizes the importance of political dissent, intellectual property law should acknowledge the importance of cultural dissent, that is, plurality within cultural spaces. Henry Jenkins, for example, describes how young children learn critical thinking, writing, and reading skills by their active engagement in fantasy worlds such as Harry Potter. Furthermore, the "Obama Effect" already noted by some scholars, showing that performance gaps between black and white students may be closing with the President’s election just months ago, suggests the political and social importance of diverse and positive cultural representations—even if that comes only from writing oneself into the stories that dominate our lives. In short, a host of arguments can be offered—and it is to this task that I turn in my book—to make the case not just for toleration of, but full-fledged legal support for more democratic cultural participation.

My colleague at the University of Chicago, Omri Ben-Shahar, has offered an eloquent and persuasive intervention on how cultural theory can usefully complement economic theory. As Omri points out, there is little wrong with the well-intentioned goal of economic analysis: maximizing the social welfare. But as Omri himself admits, we need input from different fields as to just what constitutes social welfare, and how conceptions of welfare change over time, in light of new technologies and social relations. “Economics as a discipline cannot determine what goods or activities provide value to individuals,” Omri writes, graciously adding, “It welcomes any insight from other disciplines regarding sources of value, including insights from cultural perspectives.” Seen in this light, we need cultural theory from Henry Jenkins about fan fiction communities, insights from Science and Technology Studies (STS), and Eric Von Hippel’s management theory recognizing the democratization of innovation to help us appreciate why cultural participation is just as if not even more important than cultural consumption for individual well-being. Cultural and social theories illuminate the myriad effects of intellectual property law on human rights, democracy, and development. Without fuller answers to these questions how can we determine how much intellectual property is too much?

Omri asks why I mentioned Disney’s appropriation of hunchbacks and mermaids from the public domain at the end of my last post. Did I mean to imply that that Disney added no value, or is not deserving of great remuneration for creating the classic films and stories generations have come to love? Not at all. Rather, my point was to highlight that all culture is derivative in order to complicate our romantic notions of authorship and originality that dominate intellectual property law and which at times have crept into this very debate (for example, when we differentiate professional creators of “original” work from remixers whose products are merely “derivative.”) In short, cultural theory can improve our descriptive account of how culture is created, as well as offer a prescriptive account that recognizes the importance of incentives, recognition, livelihood, participation, and shared meaning.

Rochelle Dreyfuss agrees with the broad project laid out this week, saying, “it's high time to think more systematically about crafting intellectual property law in a manner that takes account of other values.” But more importantly, she is very helpfully concerned about the best strategy for achieving this goal, warning against starting a high-pitched, internal cat fight between economic and cultural theorists in IP, especially when the political and market players in the field are so powerful. She warns that divided, we will fail as scholars to help to promote the general welfare and these very plural values that we seek to promote.

Rochelle has stated that international scholarship in IP is one area that has already sought to incorporate broader views of this law; her new book with Graeme Dinwoodie is an example. I look forward to further consideration of IP and economic development in these last two days.

Comments

[Bryan Hart]

I'm confused whether this cultural critique applies to patent law as well as copyright and trademark law. A remix of the Little Mermaid on Youtube clearly seems to be a contribution to the culture, an improved golf ball less so.