Beyond Economic Analysis of Intellectual Property: The Need For Social and Cultural Theory

Please note that this post is from 2009. Evaluate with care and in light of later events.

The University of Chicago Law School Faculty Blog: Beyond Economic Analysis of Intellectual Property: The Need For Social and Cultural Theory (Madhavi Sunder):

Over the course of the last century intellectual property has grown exponentially, but its march into all corners of our lives and to the most destitute corners of the world has paradoxically exposed the fragility of its economic foundations while amplifying its social and cultural effects. Today intellectual property laws bear considerably upon central features of human flourishing, from the developing world’s access to food, textbooks, and essential medicines, to the ability of citizens everywhere to democratically participate in political and cultural discourse.

Despite these real world changes, intellectual property scholars insist on explaining this field through the narrow lens of a particular economic vision.Intellectual property is understood solely as a tool to solve an economic “public goods” problem: nonrivalrous and nonexcludable goods such as music and scientific knowledge will be too easy to copy and share – thus wiping out any incentive to create them in the first place – without a monopoly right in the creations for a limited period of time.

In a forthcoming book, iP: YouTube, MySpace, Our Culture, under contract with Yale University Press, I argue that an intellectual property law befitting our new participatory century must lift its gaze beyond the narrow goal of incentivizing the creation of more intellectual products to facilitating critical and autonomous participation in the cultural sphere. Modernity is not simply technology. A modern intellectual property law must promote our capacity to author our own lives. These are not too lofty concerns for intellectual property law. Recall that the first copyright statute in England, the Statute of Anne, subtitled “An Act for the Encouragement of Learning,” had as its aim nothing less than the promotion of Enlightenment itself.

An interesting approach that I’m looking forward to reading about in more depth

Update: Rob Merges has a response to the above that is also quite interesting.

Professor Sunder’s main point is that economic analysis of IP is too narrow; it fails to capture some important things about what is happening in the IP landscape, and why it matters. And what is happening, she says, is that the conditions under which culture is created are changing – and changing fast.

She is right that economic analysis is inadequate to the very difficult task of determining exactly how much IP is enough, and in some cases exactly how IP rights ought to be crafted and limited. I have come to see that the optimal number of IP rights is not something that economic analysis is really equipped to determine, at least not with the current set of tools we have available. (That’s why I have been delving into Locke, Kant, and Co. in researching my own forthcoming book.)

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