Is IP for People or Corporations?
Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.
Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).
This contrast has really struck a chord, resonating in particular in Professor Silbey’s posts, Professor A.J. Sutter’s replies, and, to some extent in Professor Madison’s post, as well. (I will address Professor McKenna’s separate and important line of inquiry at the end of this post.)
Professor Silbey has asked some sharp questions about whether I am asking too much of IP law, and in particular, whether my claim that IP can and should focus on individual welfare is misguided. She writes (in the comments section) that she feels “much more certain, apropos of Molly VH’s post, that IP works best when it’s serving corporate welfare, not individuals.”
Let me begin by saying that any scholarship that is premised on the Capabilities Approach, however divergent it may be, must be committed to at least one fundamental goal: The Capabilities Approach focuses on how to improve the lives of real people. The late Mahbub ul Haq, the mastermind behind the U.N. Human Development Reports, explained this clearly in the first such report in 1990: “The real wealth of a nation is its people. And the purpose of development is to create an enabling environment for people to enjoy long, healthy, and creative lives. This simple but powerful truth is too often forgotten in the pursuit of material and financial wealth.”
Martha Nussbaum affirms the same about the essence of the Capabilities Approach today. The Capabilities Approach, she reminds us, arose when philosophers and developmental economists focused less on GDP and stopped to “[s]uppose for a moment that we were interested not in economic or political theory but just in people.”
Here is Nussbaum’s own succinct description:
“A new theoretical paradigm known as the Capabilities Approach is evolving. Unlike the dominant approaches, it begins with a commitment to the equal dignity of all people, whatever their class, religion, caste, race or gender, and it is committed to the attainment, for all, of lives that are worthy of that equal dignity. Both a comparative account of the quality of life and a theory of basic social justice, it remedies the major deficiencies of the dominant approaches. It is sensitive to distribution, focusing particularly on the struggles of traditionally excluded or marginalized groups. It is sensitive to the complexity and the qualitative diversity of the goals that people pursue. Rather than trying to squeeze all these diverse goals into a single box, it carefully examines the relationships among them, thinking about how they support and complement one another. It also takes into account that people may need different quantities of resources if they are to come up to the same level of ability to choose and act, particularly if they begin from different social positions.”
My own efforts to inform contemporary intellectual property law with the insights and commitments of the Capabilities Approach have focused on how intellectual property laws affect everyday people around the world. From suburban fan fiction writers to kids playing in Quidditch Leagues to Ethiopian coffee farmers cultivating some of the world’s highest grade coffee, evocatively known as “black gold,” intellectual property rights can affect capabilities to share stories, critique, pay homage, play, joke, engage socially with others and earn a decent living. My approach is attentive to the distribution and oftentimes maldistribution of the spoils of global intellectual property rights.
Professor Madison notes my normative commitment to critical thinking and participatory culture over passive reception of the output of Hollywood and Madison Avenue. The Capabilities Approach is again helpful to understanding my position. Approaching intellectual property from the perspective of “the struggles of traditionally excluded or marginalized groups” makes one particularly attentive to the ways in which global and popular culture often reflects, in Professor Anupam Chander’s words, “the Daily Them” and not the “Daily We.”
Equality and freedom require the ability to speak back to popular culture, which plays a profound role in shaping what people think they can do and be. Speaking back is not always critical; our engagement is often born of love of the original works, but with some additional comment on that work at the same time: Homage and reply.
Professor McKenna raises a wholly different point: he observes my commitment to participation in global markets rather than an all-out rejection of the market. Like Amartya Sen, I embrace an agency-oriented vision of development in which global creators seek to engage in market exchanges with others on fair terms and with equal dignity and respect. (Sen, it must be remembered, found his first academic discipline in economics.) But I do not rely on market exchange as the exclusive vehicle for cultural production or exchange. Examples of non-market based production in my book are legion, from fan fiction to patent pools to spur the production of pediatric AIDS drugs to grants to sustain enterprises such as Bengali poetry.
Intellectual property is not the exclusive tool for promoting global justice today. But in today’s Knowledge Age, when wealth, dignity, meaningful work, and mutual respect and understanding turn on the ability of people to create and exchange knowledge with one another, we should insist that intellectual property must help facilitate the ability of human beings to live good lives.