Über die Autorin bzw. den Autor

Madhavi Sunder is professor of law at the University of California-Davis School of Law. She lives in Davis, CA.

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From Goods to a Good Life

YALE UNIVERSITY PRESS

Contents

Introduction: Culture and Freedom..............................11 Beyond Incentives............................................232 Bespoke Culture..............................................453 Fair Culture.................................................824 Everyone's a Superhero.......................................1055 Can Intellectual Property Help the Poor?.....................1266 Bollywood/Hollywood..........................................1457 An Issue of Life or Death....................................173Acknowledgments................................................201Notes..........................................................207Index..........................................................249

Chapter One

MORE THAN A QUARTER-CENTURY AGO, property scholars interrupted the hegemony of a law and economics discourse focused exclusively on efficiency to introduce broader theories about property and social relations. As the New Jersey Supreme Court declared in 1971 in the historic case of State v. Shack, "[p]roperty rights serve human values." Modern property law was to balance plural values beyond efficiency to consider personhood, health, dignity, liberty, equality, and distributive justice.

In contrast, at the start of the twenty-first century intellectual property scholarship remains moored to a singular economic account. In the modern day, intellectual property is understood almost exclusively as being about incentives. Its theory is utilitarian, but with the maximand simply creative output: law's goal is to promote the invention of more machines, from the Blackberry to the iPod, and more intellectual products, from Mickey Mouse to R2D2. Scholars and legislators struggle to calibrate the optimal length of copyright and patent terms to promote efficient innovation. Even critiques of the recent expansion of intellectual property law's breadth, scope, and duration adopt the same language. Progressive law and economics scholars argue that too much intellectual property law can impede innovation, locking up the building blocks necessary for further innovation.

We did not always understand copyrights, patents, trademarks, and trade secrets this way. Copyright law emerged out of the Enlightenment in England in the early eighteenth century, when the granting of limited rights to authors broke the perpetual monopoly in intellectual works held by printers, encouraging the creation of new works and their broad dissemination to a more democratically engaged public. Patent law has always sought to encourage access to knowledge, requiring owners to share knowledge of their inventions in exchange for limited monopoly rights, rather than protecting the knowledge as a trade secret. And trademark law originated in theories of unfair competition and consumer protection, not property law.

But over the last few decades law and economics scholars have reimagined intellectual property law, portraying it as solely an instrumental mechanism to incentivize creativity (copyright), invention (patents), and industry (trademarks). Because information is assumed by its nature to be nonrivalrous and nonexcludable, the concern is that free-riding will eliminate any incentive to produce information. The insertion of property rights, the theory goes, incentivizes the production of information, which will then inure to society's benefit through the market mechanism, with those willing and able to pay being permitted to consume the information. Others might free ride, but only where high transaction costs would make marketplace exchanges unlikely. In short, market failure is cited as the raison d'être for intellectual property, explaining copyright, patent, and even trademark.

But intellectual property today is more than simply a tool for incentivizing creative production in the form of more things, from Bratz dolls to PCs. Intellectual property laws bear considerably on the ability of humankind to flourish, affecting everything 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, to the equal opportunity to earn a livelihood from one's intellectual contributions toward making a better world. Today, the legal regime of intellectual property has inserted itself more deeply into our lives and more deeply into the framework of international law.

Despite these real-world changes, intellectual property scholars continue to understand intellectual property 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—unless a monopoly right in the ideas is provided for a limited period of time. The dominance of this singular, narrow economic discourse has rarely been challenged.

Yet in case after case today, we see that traditional law and economic analyses fail to capture fully the struggles at the heart of local and global intellectual property law conflicts. In the handful of cases that follow—ranging from high technology to low, from first world to third—we will see that the proponents of that school have failed to persuade the U.S. Supreme Court, let alone activists in the developing world. Indeed perhaps one of the most remarkable facts about William Landes's and Richard Posner's seminal text The Economic Structure of Intellectual Property Law, hailed as "the most important book ever written about intellectual property," is that it finds that much of intellectual property law's expansion at the end of the last century cannot be justified by economic reasoning. They conclude devastatingly that "no public-interest explanation for the evolution of intellectual property law over this period seems plausible." Their book is as much of a wake-up call for reform of intellectual property law as it is a massive undertaking to rationalize this law within an economic framework.

But where Posner and Landes would correct the descriptive disconnect by mooring intellectual property law more firmly to economic analysis, I argue that a more multidimensional account of this law is necessary. Pundits declare that "[i]ntellectual property has come of age," but it is increasingly apparent that current intellectual property law is not mature enough to face the diverse and changing world in which we now live. I offer three critiques of the narrow intellectual-property-as-incentives understanding: (1) it fails descriptively as a comprehensive account of extant legal doctrine, (2) it fails prescriptively as the exclusive basis for deciding the important intellectual property conflicts of the day, and (3) it fails to capture fully the dynamics of cultural creation and circulation.

One prominent example of the disconnect between intellectual property theory and practice is Eldred v. Ashcroft, the first copyright case to go before the Supreme Court in the new century. At issue in Eldred was the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998, in which Congress extended the already lengthy copyright term by another twenty years. The first copyright term established in 1790 lasted fourteen years from the time of publication, with the...