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.

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1 Response

  1. A.J. Sutter says:

    Is saying that “IP works best when it’s serving corporate welfare, not individuals” prescriptive or merely descriptive? It can be read both ways. I don’t know about Prof Silbey, but I take it only descriptively. So it’s easy to agree with you that the point of the Capabilities Approach perspective is a commitment to improving the lives of real people. Then the question becomes, what’s the role of IP law in doing so? This is a much grayer area.

    You mention in the book that IP law “is not only about authoring books or inventing tools. [It] is also about authoring our own lives and inventing our own communities” (@21). I think this leads one in the wrong direction. And especially because it doesn’t come to grips with the fact that, in purpose and effect, IP law creates artificial scarcities. (The late André Gorz developed this quite nicely in his The Immaterial (Seagull 2010; French original: L’immatériel, Galilée 2006).

    Books, tools, lives and communities don’t need IP law to come into being or to thrive. They’ve all been around for millennia without need of IP laws. And all creations are derived from something else. Even, say, Einstein’s theory of general relativity, which seemed to have come out of nowhere when first published (unlike special relativity, which many physicists had been gnawing around). It was based on Newton’s physics, the math of Levi-Civita and Riemann, and all the other math and physics that Einstein had absorbed from his reading since childhood, all of which was written by someone, plus the comments of his teachers and collaborators, each of whom had had teachers and collaborators, etc.

    IP law is actually a burden on this creative activity. Its point is to make specific creations scarce, and the same for further creations derived from those. Law is used precisely because those creations aren’t naturally scarce — physically, they’re easy to copy and distribute. Another sign of artificiality is the arbitrariness of valuation. Consider books: at least with a physical book there are certain fixed production costs, including for editing, design, printing set-up, and other labor. But look at the pricing for Kindle editions: it’s a substantial fraction of the price of the physical book, even though those costs weren’t incurred and many attractive features of the physical book are obliterated. Why shouldn’t an e-book be free, or cost pennies at most? After all, as you, Gorz and others have pointed out, there could be other ways to support creators financially. In effect, IP law is a way of regulating and charging rent for the authoring of our lives and the inventing our communities.

    One aspect of your book is to protest this regulating effect, e.g. re fan-made works and other forms of what you call “speaking back” to popular culture, and also making certain pharmaceuticals available. To the extent we can improve human lives by reducing the constraining effects of IP on human lives, I’m with you. And since I don’t expect we’re going to overturn the whole IP legal regime any time soon, this is a good area of engagement for IP lawyers and academics.

    But another theme you have is to encourage poorer creators and communities to exploit these artificial scarcities, and then take the money and use it for good. This consequentialist argument makes me a little uneasy, in at least two distinct ways. First as a practical matter: whether the intended happy consequences ensue is not a function of IP law. In another comment to this symposium, I mentioned a client, a small provincial city that owns a mountain spring. They’re bottling, branding and selling the water to support municipal activities, and I admit that I’ve encouraged them to expand that. But IP laws can’t make sure that the proceeds will be used for good. E.g., the city could squander the proceeds on some garish new city hall named after the current mayor. Or in his zeal to sell the branded spring water, the mayor might neglect his other duties. So whether IP laws will in fact “facilitate the ability of human beings to live good lives” is not something IP laws can determine. (BTW, you suggest that stronger patent laws in India might lead to a focus on innovative new drugs (@183); contra, see the US experience, with most new drugs being copy-cats and directed to the diseases of the wealthy.)

    The second uneasiness I have is in principle, and goes to means vs. ends: at this stage of my career, I feel very mixed ethically about encouraging people to create artificial scarcities, to exploit a rotten system. As with the city’s mountain spring, maybe in a specific situation I’ll do so anyway, but it seems to me right that I should first agonize a bit, and look for alternatives that I can suggest to them. (BTW, a good source for an alternative outlook is Ivan Illich’s classic Tools for Conviviality (1972). Illich was a friend of Gorz, and his influence is still strong in France; he also inspired a somewhat narrow but very IP-wonkish work about open-source biotech, Janet Hope’s Biobazaar (HUP 2008).)

    Because your book doesn’t recognize the artificial scarcities issue, you skip this step of agonizing, and embrace such a use of IP as a good and even urgent thing. I think there are a couple of other areas too, where your approach is maybe too hasty. One is, the book never questions whether innovation is always a good thing. The American way of cost-benefit analysis always assumes that it is, but the precautionary principle has more of a following in other parts of the world (and used to in America too, as Douglas Kysar has shown). Another is that you seem to assume that IP laws will always benefit poorer countries (@140), and that cultural exception arguments concerning IP laws are somehow based on racism (see @169-171). You might be interested in the work of social anthropologist James Leach, who has shown that the types of ownership attribution necessitated by copyright and trademark systems is actually disruptive of indigenous cultural systems in Papua New Guinea. See his essays in Trade Marks and Brands: An Interdisciplinary Critique, edited by Bently & al. (CUP 2008), and in CODE: Collaborative Ownership in the Digital Economy edited by Rishab Aiyer Ghosh (MIT 2005).

    I should mention that I don’t often spend all day writing comments about someone else’s book, so thanks for providing something worth engaging with.