Author: Molly Van Houweling


Fair Culture and Cultural Welfare

I began reading From Goods to a Good Life while flying to Johannesburg. I finished reading on the return flight, having during my first visit to South Africa caught a brief but bracing glimpse of the country’s beauty, hospitality, dire income inequality, and unrest. Professor Sunder’s distinctive and engaging prose would have drawn me in wherever I picked up the book, but in the midst of this journey I was especially taken by her opening and recurring example of Solomon Linda. She introduces Linda as “[a] black migrant worker living in a squalid Johannesburg hostel in 1939” who “composed a song based on his own childhood experiences protecting cattle from lions in the jungle.”

The song borrowed the syncopation of American jazz from across the Atlantic and mixed it with an a cappella melody to create what would become Africa’s first recorded pop hit. Linda’s song soon crossed the Atlantic and was reborn, as “Wimoweh” and later as “The Lion Sleeps Tonight.” It would go on to be recorded over 170 times, eventually finding its way into Disney’s immensely popular film and Broadway production The Lion King. But while the song eventually produced millions of dollars for Disney and others, Linda died destitute, suffering from a curable kidney disease at the age of fifty-three. One of Linda’s children died of malnutrition and another died of AIDS.

Sunder returns to Solomon Linda’s story throughout the book. Here I want to focus on the way she deploys Linda’s story in her third chapter, Fair Culture. As she does elsewhere, Sunder here critiques “intellectual property utilitarianism.” She laments that “[t]he utilitarian approach to intellectual property does not ask: Who make the goods? Who profits, and at whose expense?” I appreciate Sunder’s attempt here to inject IP policy with alternative values–including distributive justice and cultural pluralism–that tend to get short shrift in IP scholarship (although I agree with Professor Said that the shrift is not quite as short as Sunder sometimes suggests). But–and perhaps this reflects my own inability to break out of conventional utilitarian thinking about IP–what I find most striking about this chapter is how it enriches the utilitarian account on its own terms.

To see how, start with an extremely simplistic version of the utilitarian incentive logic as applied to copyright: the exclusive rights of copyright are justified to the extent they give authors incentives they would not otherwise have to make creative works. On this logic, one might be skeptical of exclusive rights that benefit authors who write not for money but for love (as Professor Sibley so eloquently puts it in her post, “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”). But there is a version of the utilitarian story of copyright that understands promotion of creativity to encompass more than just incentives for authors. Julie Cohen, for example, argues in Copyright as Property in the Post-Industrial Economy that “copyright is about the proper industrial policy for the so-called creative industries.” “Copyright creates a foundation for predictability in the organization of cultural production, something particularly important in capital-intensive industries like film production, but important for many other industries as well.” Cohen thus suggests that whether or not copyright incentivizes authorial creativity (she is skeptical), it can be important to the continued survival of industries that play an important role in financing cultural production and broadly disseminating cultural output. Cohen calls this “incentives for capital” (as opposed to “incentives for authors”). But to me the point seems to be more about sustenance than incentives. Or, as Cohen elsewhere puts it: “copyright is centrally about corporate welfare.”

Time to return to Sunder, to South Africa, and to human—as opposed to corporate—welfare. It is remarkable and humbling to me that until reading Sunder’s account of Solomon Linda and her vision of “Fair Culture,” I had never before focused on how intellectual property does (or doesn’t but ought to) promote the survival (not just the creative incentives) of human beings who contribute to culture. Perhaps, as Cohen suggests, some corporations cannot support the production and dissemination of mass culture without copyright-enabled profits that sustain their businesses. Sunder makes the stronger and more compelling case that individuals cannot devote their attention to preserving, participating in, and producing culture without livelihoods that sustain their bodies and minds. Of course, we need not look to intellectual property policy to justify (or to provide) the necessities of human survival. Solomon Linda’s untimely and unnecessary death would be just as tragic even if he had not been a talented composer. But if he had been a compensated composer it might not have happened. As Sunder tells us, “cultural participation helps secure livelihood.” “[T]remendous wealth may be generated from cultural production . . . . This wealth may, in turn, be used to promote basic needs, such as health and safety.” And promotion of those basic needs may in turn enable continued cultural participation. But it is easy for those of us with both love and money to lose sight of this fundamental point.