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Is IP for People or Corporations?

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  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.

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