From Madhavi to Mad Men
As Zahr Said points out, Madhavi Sunder is by no means the first to critique intellectual property from the perspectives of distributive justice or liberty. Indeed, the author of From Goods to a Good Life: Intellectual Property and Global Justice not only gives due credit to the IP scholars who have written in this vein before her, but provides a compelling intellectual history of the field. What is striking about this particular book project is not so much its break with past approaches, but its breathtaking ambition in positioning the future of the field.
In From Goods to a Good Life, Sunder seeks to offer a comprehensive new framework for thinking about choices in intellectual property law – from patents to copyright to trademarks to traditional knowledge. The orienting value of this framework is not efficiency or innovation or profit, but well-being. Specifically, Sunder starts from the theory of human development, or capabilities approach, as articulated by Amartya Sen and Martha Nussbaum. She asks how intellectual property law can promote opportunities for all people to live a good life.
Predictably, one of the implications of this opportunities-oriented theory is that intellectual property protections should give way when they threaten to frustrate urgent human needs, as in the context of access to medicines. Less predictably, Sunder suggests that we must also care deeply about access to music and movies and Harry Potter. After all, these arguably frivolous modalities of play and meaning-making are what “make a human life truly worth living.”
Sunder also tackles head-on a problem that has bedeviled the “access to knowledge” movement. A2K advocates never intended a vision of access as passive consumers lining up to help themselves to cultural works and patented technologies. Yet this is the image that “access” calls to mind. Sunder replaces it with the talisman of “participation.” In this view, culture is not a commodity but a process, one in which all should be empowered to take part on a more equal basis.
Given Professor Sunder’s expansive scholarship on copyright and culture, it is understandable that From Goods to a Good Life is heavier on copyright examples, offering just enough to prove the concept in the field of patent law. Yet the framework she provides is powerful enough to challenge patent law as well, and just in time to inform an effort at the United Nations to interpret the Universal Declaration’s human right “to enjoy the benefits of scientific progress and its applications.”
Sunder’s book tackles both demands for access to essential medicines, and the potential of intellectual property to enable the poor to profit from their inventions. I would suggest that Sunder’s theory of the good life also points in a broader direction: life-saving medicines are by no means the only technology that can help promote the living of a good life. A very broad set of technologies expand opportunities to live a good life, ranging from electricity to contraceptives to transportation and the Internet. We should be concerned about whether patent law promotes broad diffusion of these technologies, or keeps prices eternally high.
A case in point is electric light. Edison began to serve his first business clients in the early 1880s. Yet a half century later, most Americans did not own a single lightbulb. To bring this technology within reach required a rethinking of the government’s role, and the creation of public utilities. Intellectual property was also a barrier, with patent litigation in the lightbulb industry producing an unhealthy consolidation of the sector and a decline in the next-generation innovation that could have brought prices down more quickly. The traditional focus of patent law on innovation too often ends before enquiring how broadly the new technology will be enjoyed.
I’m about to retire for the evening and engage in another form of cultural reflection, of which I am sure Madhavi will approve: my husband Bob and I will share an episode of MAD MEN. (In the spirit of From Goods to a Good Life I should point out acknowledge that I enjoy this particular opportunity to commune with and react to Matthew Weiner’s commentary on modern society only as a member of a global elite. My Netflix subscription is priced out of reach for most of the world, and probably unavailable in many countries due to copyright, which also unhelpfully prohibits unauthorized translation and subtitling for non-English speaking audiences.)
MAD MEN is the perfect antonym for the better world that Professor Sunder’s work envisions. Marketing executives, practically dripping in 1960’s-era white male privilege, strive to endow branded commodities with hegemonic symbolism. The protagonists of this drama view their fellow Americans not as citizens to be democratically engaged or individuals creating their own lives, but as minds to be manipulated. To achieve that goal, they fund the creation of one-way cultural media, which offers its audience no opportunity to challenge the message that the most important way of making meaning in the world is through passive consumption.
The contrast between Madhavi and Mad Men is a reminder both of how far we have come in the era of feminism, fan fiction, and fair use… and how far we still have to go. As my fellow symposium blogger Laura DeNardis points out, our cultural infrastructure depends on marketing agendas, this time of an even less obvious sort.