Super-Sizing IP Values
posted by Mark McKenna
In a 2006 Stanford Law Review article, Madhavi Sunder despaired that “there are no ‘giant-sized’ intellectual property theories capable of accommodating the full range of human values implicit in intellectual production.” But, she argued, there should be. From Goods to a Good Life is her full response to her own challenge, pushing intellectual property scholars to conceive of IP rights not through the narrow lens of incentives to create and distribute, but as tools to promote human flourishing broadly understood.
I am quite sympathetic to Sunder’s goals here, and we share an affinity for the capabilities approach most prominently associated with Amartya Sen and Martha Nussbaum. Indeed, Brett Frischmann and I have also suggested (only in much broader and tentative terms than Sunder) that IP theory needs to open up to a broader range of goals. Yet in spite of the ambition of Sunder’s project, I was struck by how traditional her project ultimately seemed. For notwithstanding her avowedly liberal goals, Sunder embraces property as much as she rejects it, and many of the tools on which she would rely to promote development depend heavily on the very market mechanisms she criticizes for having led to the exploitation and inequality she wants to address.
To be sure, Sunder has different ideas about the scope of IP entitlements – particularly when those entitlements run up against concerns about access to medicines or other cultural products. But fundamentally what she wants is a principle of equal recognition that operates in practice and not just in theory. She wants poor people’s inventive/creative contributions to be recognized, both in the sense of attribution and in the sense that those contributions deserve the status of property that can be traded to improve material conditions. Hers is a freedom-promoting conception of property that, as Jedediah Purdy has written, traces to the “Enlightenment period of the mid-to-late eighteenth century, when it was exemplified in the thought of the Scottish jurist, moral philosopher, and proto-economist Adam Smith.” This notion that the ability to own property can enable individual creators to make a life for themselves is prominent in certain threads of IP literature. But notably, most proponents of that view (Rob Merges comes to mind most significantly here) favor more IP protection than do the cultural critics of IP on whose work Sunder draws when she argues, persuasively in my view, for greater recognition of the need to engage with, and even to subvert, creative works.
This is not to say that Sunder would come to the same conclusions as these scholars about how a freedom-promoting conception of IP should play out in practice – clearly Sunder would balance the competing interests of creators and users differently, at least in some cases – only that I am struck by how resonant her approach is with those understandings of property, and indeed by how much actualizing her views would depend on property as an institution. Thus, I had the feeling reading the book that Sunder is deeply conflicted about the role of the market as the mechanism for promoting human flourishing.
Sunder, for example, suggests many times throughout the book that people in the developing world might rely on geographical indications (or some variant thereof) as means of gaining recognition for their creative accomplishments and as a lever for economic development. But GI’s, as Sunder notes, are brands – they work only to the extent they are valued by consumers because they denote (or reify) some characteristic consumers care about. And getting consumers to notice and care about a new GI won’t be easy, because they are swimming in GI’s already. There are well over 100 American Viticultural Areas in California alone; the names of thousands of counties in the US are protected appellations of origin; hundreds of wine-related indications are protected just in France; and thousands more GI’s (counting the several varieties) are protected in Europe.
To succeed with a GI in this marketplace, you need a megaphone. That will be even truer for indications that refer to places in the developing world, since as Sunder ably demonstrates, we in the developed world have a skewed sense of the sources of creativity. And of course those who will need the biggest megaphones have the least access to the marketing machinery they will need to compete.
Lea Shaver wrote in her review that “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 irony of Sunder’s book is that, having shown so well the problems with one-way cultural media, some (many?) of her solutions would rely on the very same mechanisms of one-way cultural media.
September 12, 2012 at 9:37 pm
Posted in: Culture, Cyberlaw, Innovation, Intellectual Property, International & Comparative Law, Symposium (From Goods to a Good Life)
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A.J. Sutter - September 13, 2012 at 10:40 am
“The irony of Sunder’s book is that, having shown so well the problems with one-way cultural media, some (many?) of her solutions would rely on the very same mechanisms of one-way cultural media.”: Well, maybe the book’s treatment of GIs isn’t so much an irony as an indication that one’s attitude toward “one-way cultural media” shouldn’t be so Manichean. It could be a matter of degree — even assuming that the “one-way” characterization is correct.
E.g., one of my clients is a small city in northern Japan. They have a national, even Asian regional, reputation as a ski resort. The city owns a source of spring water and has a bottling facility; their idea is to sell the water and to use the proceeds for municipal activities. Is it some kind of tragedy, or sell-out of ideals, would I wring my hands in anguish, if they advertise their water? Market it in posh Tokyo restaurants? Try to get it into vending machines in Tokyo? (Better that than the imported Evian, priced below local waters.) Market it to health-conscious rich people in Shanghai? Within some limits, I wouldn’t worry about any of these activities, nor think that they will be destroying culture. OTOH some extreme kinds of tasteless and/or big-budget campaign might be too much, as would sales in volumes that could be environmentally deleterious or that could distract the city government from its main task of governing.
Incidentally, their label has a picture of the tallest peak in Iwate Prefecture, Iwate-san, in whose shadow they are situated. What kinds of associations does that make? And how? There are many who hold that brands need the mental participation and imagination of consumers — that brands are in some way two-party constructs. See, e.g., Franck Cochoy, Une sociologie du packaging, ou l’âne de Buridan face au marché (Paris : PUF 2002) and the article “Trade marks as property: a philosophical perspective” by D. Scott, A. Oliver and M. Ley-Pineda in Trade Marks and Brands: An Interdisciplinary Critique, edited by Bently & al. (CUP 2008) .
I’m less troubled by whether GIs are one-way cultural media than I am about the extent to which they may create competition, rather than cooperation, between local areas. As pointed out by Alberto Magnaghi, a professor of land use planning at the University of Florence, the usual growth-oriented model of regional development conceives of localities as containing resources for consumption in a global market. In that model, each area does need a megaphone, as you suggest. Instead, Magnaghi proposes that a locality focus first on what it should preserve, and then on cooperating with its neighbors, and only then on some type of broader-scale marketing — provided it doesn’t conflict with those other, higher priorities. See Alberto Magnaghi, Il progetto locale: Verso la coscienza di luogo, Nuova ed. (Bollati Boringhieri 2010); available in English translation of the first (2000) edition as The Urban Village (Zed 2005).
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