Intellectual Property Theory: An Homage and Reply
I am moved and honored by this deep engagement with my book by this amazing array of scholars. Let me reply to each that has chimed in so far, and seek to situate my work within the broader IP discourse at the same time.
What a difference a few years make! Professor Said, who is younger than I am, arrived on the IP scene more recently, and happily she found a more plural discourse than I saw several years back. In the first few years of the new century, scholars on both the Right and Left seemed unified in their commitment both to the incentives rationale and the ultimate goal–innovation. Scholars on the Left saw the incentives rationale as limiting IP rights, because they argued that intellectual property need not offer rights beyond those necessary to incentivize creation. They also argued that too many property rights might result in an anticommons and erode the public domain. Some public domain scholars—to whom my book is both homage and reply—worried that opening IP to alternative discourses such as human rights might bolster property owners’ arguments rather than limit them.
The public domain scholars opened a space for critique in a field that was “coming of age.” In my new book, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press 2012), I seek to both consolidate and expand that critique. I argue that we need to rethink the ultimate goal of intellectual property itself. We should seek not simply to promote more goods, but rather the capability of people to live a good life. To that end, we need to ask new questions beyond just how much intellectual production law spurs, and turn to disciplines beyond law and economics for guidance. Which goods are being produced and which are neglected under market incentives? Even when goods are produced, like AIDS medicines, how can we ensure just access to these knowledge goods? Surely access to essential medicines for people who cannot afford them is important if we believe in the dignity of all human beings. But what about access to culture, such as films, music, and literature? I argue that participation in these cultural activities is just as important – singing and dancing together and sharing stories are activities central to our humanity. They promote learning, sociability, and mutual understanding.
In focusing on these broader questions and concerns, I take the arguments of the public domain scholars that came before further, and not always in the directions they may have wanted. I affirm their observation that creativity is a social and reiterative process. I emphasize that sharing is important not just because it is how people create, but because sharing promotes our humanity. Like the cultural process I describe, I am building on the amazing and powerful work of many.
At the same time, some may find discomforting my calls to democratize who we recognize as authors and inventors. I argue that a more democratic culture, that is, one in which more and more of the world’s people are engaged in cultural production and exchange, requires the simple recognition that each of us has a story to tell and knowledge to share.
In my book, I do not reject economics, but rather seek to expand the discourse, elaborating how the economic impact of intellectual property goes beyond incentives. In a global knowledge economy, wealth and power turn on whose knowledge production is recognized and whose contributions to our shared culture are taken without recognition or remuneration. And what ought we do about the poor who lack the capacity to innovate?
Professors Zahr Said, Lea Shaver, Laura DeNardis, Brett Frischmann, and Deven Desai are themselves amazing scholars working toward these broader goals. Professor Shaver is a leading light in the global access to knowledge movement. And her new work on Edison and the light bulb is a case in point for approaching IP from a broader frame premised on human rights. Professor Shaver is focused not just on how Edison’s patents impeded innovation and competition in this new industry, but also with the ways in which the fruits of innovation benefit real people and promote a free and democratic society. Her intellectual property stories are broad, foregrounding human beings and the promotion of their capabilities.
Professor Desai’s work on brands and trademarks seeks to empower consumers’ ability to participate in creating and directing brand meaning, moving us away from a world in which cultural meaning is controlled only by those with traditional power – the Mad Men, to use Professor Shaver’s astute analogy.
Professor Frischmann’s own new book does the hard work of broadening the economic analysis of intellectual property to include developmental economics.
And Professor DeNardis’s expertise regarding the social and political dimensions of technology infrastructure and policy powerfully and presciently warns that at that same time that new technologies such as YouTube and Facebook give citizens more power to shape the cultural discourse, the advertising schemes underlying social media may be surreptitiously undermining human freedom, taking and distributing our personal data as the ultimate price of our freedom to speak and create.
I thank my colleagues for their poignant questions and insightful examples that further illuminate our need for deeper engagement with the broad social, cultural, political and economic effects of contemporary IP law.