What’s IP Good For?

I am glad to be participating in this virtual symposium and reading Madhavi Sunder’s book. Professor Sunder has been thinking, reading and writing about these issues for a long time in a crowded academic space of intellectual property, economic justice and cultural contest. This book distinguishes her yet again as a strong and clear-headed voice for what we mean when we talk about IP in the public interest. For what else is law about than promoting social welfare? All law, be it public or private law, is theoretically for enhancing the “good” society. The questions lawyers and legislators and policy folks debate is what constitutes that “good” (or certainly “goods”) and how (or whether) law should be structured to promote it/them. On this precise issue I have a point of clarification, however: do we wonder whether IP (whether as a tool or a right, p. 15) is at all necessary or even important for promoting the values Professor Sunder identifies (those central human capabilities from Nussbaum)? I have been wrongly accused (on more than one occasion) of being an anti-property person (fill in your own epithet relating to dead communist and socialist leaders). I am not. But I am also not convinced that intellectual property as it exists as a regulatory mechanism in the United States (or elsewhere) in fact promotes human flourishing to the extent that justifies the exclusivity and withholding that exists with regard to scientific and cultural products around the world.

By this I mean at least the following. Professor Sunder is for sure right when she calls out “efficiency” and “incentives” as straw figures in the quest for theoretical clarity in the legal model for optimally producing and distributing goods such as medicine and music. Most people who make things – either for a long time and after intense investment in a laboratory or studio or after a short time after a walk or good nap – are not doing it in order to protect it through intellectual property laws to maximize revenue. Both qualitative and quantitative empirical work bears this out. People make things because it is what they do – it is how they process the world, it is what they love, it is the solution to a problem, it is important to them or their community. What role does law really have in this kind of making and doing process? IP law has little to do with it, unless IP funds the underlying venture (as in pharmaceutical companies’ research, and even there the figures are unclear whether 20 year patent monopolies are necessary, as opposed to leakier business tools). Labor and employment law, contract law, welfare laws (including the regulation of public utilities, in which I would include the Internet) have more do to with whether people can and do pursue creative and innovative work. The notion that because someone will have the ability to exclude others from copying their work incentivizes folks to in fact engage in the work and distribute it is simply not born about by the data.

However, there is a fine line between (1) plural incentives (p. 21) and culture as a participatory community (p. 17) which in fact generate and perpetuate creative and innovative work, and (2) the deep-seated feelings of possessive individualism that stir in so many of us, which also propel us as inevitably ego-centric individuals to make and share in ways that will be recognized and rewarded. Professor Sunder talks about “fairness through recognition” (p 96) and certainly questions of attribution and credit are central to discussions of copyright, and to a lesser extent trademark and patent law. And so it is that being seen as a person who makes and contributes is paramount to most creators and innovators (what some would call reputational interests). IP law doesn’t help with this. That is surprising to most creators and innovators, be they individuals or corporations. And it is deeply frustrating to them. But here again is an example where IP law seems orthogonal to the interests at stake.

I have more to say about how IP works (and how it doesn’t) in terms of Professor Sunder’s excellent book. But I will wait to see what others write.

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6 Responses

  1. A.J. Sutter says:

    As for questions of attributions and credit, why do they apply “to a lesser extent” in patent law? If inventors aren’t correctly identified on the application, any issued patent is invalid. What could be more central than that?

  2. Jessica Silbey says:

    Because inventors don’t get to control the manner of attribution beyond being on the patent. They get “credit” only by being listed. But what their company does to name or attribute the invention to them is otherwise entirely a feature of contract law. Marketing of the product, advertising as “invented by me” is rarely part of the bargain.

  3. A.J. Sutter says:

    Thanks for your reply. But have you read a lot of engineers’ resumes? Regardless of who is the assignee of the invention (which usually is the employer, thanks to agreements signed at hiring), this is a very important part of marketing oneself, not the product. I’ve worked for companies in the semiconductor and electronics industries, and I assure you engineers and scientists are very intense about getting credit on patents. BTW, I have a patent on my resume, too, even though a large corporation owns the rights. (In fact, the prestige of the assignee is another form of reputational credit.)

    It’s not necessarily different in the entertainment industry, where I’ve counseled clients as a private practitioner. E.g., if you’re on a movie with a dozen writers, where no more than 3 teams of 3 writers can get credit under WGA rules (assuming such teams even were involved), you will want to be one of the lucky 9 or fewer people getting credit — not because the movie will be advertised as being written “by you” (you’re at best just 1 out of a crowd of people in illegible font), but because if the movie does well the credit will affect your next paycheck. You may object that WGA rules are contract law, not copyright law, but nonetheless this blunts the distinction you make in your 11:08 reply to my comment.

  4. A.J. Sutter says:

    PS: my 12:54 comment tried to eliminate distinctions between the two situations, but in fact there’s an important one, consistent with my point at 10:36: As far as resume value goes — i.e., marketing the creator, not the creation — patent law is aligned with protecting inventors’ reputational interests, since if an inventor isn’t named the patent isn’t valid. Copyright law, on the other hand, is not sufficient to protect the reputational interests of authors in the practical screenplay situation I describe; if you didn’t get credit on the screenplay, you’d either have to leave it off your resume or mention that you were uncredited, which isn’t necessarily a plus.

  5. Jessica Silbey says:

    I agree that reputational interests are huge for creators and innovators, the resume example you give is a good one. And I have spoken with many, many engineers and scientists (my book is on just this issue based on interviews with such folks). So I agree with you that credit and attribution are important, if not the most important thing, for many. But IP law doesn’t help with that at all, except in very narrow ways (inventorship rules, as you say, and when plagiarism and copyright infringement align). I feel much more certain, apropos of Molly VH’s post, that IP works best when it’s serving corporate welfare, not individuals. This is also Julie Cohen’s point.

  6. A.J. Sutter says:

    Thanks for your reply. “IP works best when it’s serving corporate welfare, not individuals.”: Then we’re batting 1.000, because I agree with this, too.