One of the papers presented at Stanford’s recent conference, Cultural Environmentalism at 10, reflects a new shift in IP scholarship to reject utilitarianism’s grip on academic discourse in order to include cultural values. This move is intended to parallel Margaret Jane Radin’s theory of personhood, which similarly “interrupt[ed] hegemonic law and economic discourse on property.”
I’m naturally inclined to resist new “social theories,” especially when the law is showing no sign of catching up with last year’s fad theory. More fundamentally, I’m not sure this new one is right on the merits for two reasons: first, it begins by mischaracterizing current legal doctrine (claiming that it does not accommodate non-utilitarian interests) and second, it assumes that the inclusion of non-utilitarian values would compel more protection.
Our current IP regime generally grants protection on utilitarian grounds, but circumscribes that protection for both utilitarian reasons, e.g., to minimize deadweight loss, and non-utilitarian reasons, e.g., to promote free speech. Given this baseline, the argument for increased non-utilitarian values is either obvious or wrong. It’s obvious if these folks want to narrow rights for the sake of free speech or, well, free culture. That’s old hat around these parts. It’s wrong if they want to heighten protection at the initial stage for the sake of non-utilitarian values. Based on a few of their papers, I think they’ve chosen to be wrong rather than obvious.
By comparing themselves to Radin, they gloss over the well-known but essential fact that real property (unlike IP) is rivalrous and excludable. Because of this difference, the connection between IP and moral rights is more tenuous (most plausible within copyright, and again, this already exists). What’s really animating this move is a desire to cure global inequities through greater IP protection. Nobody doubts the existence of inequities. But we should all doubt whether more protection is the way to balance the ledger, namely, for all of the economic and noneconomic countervailing interests articulated by Lessig and others. Pity protection is not the answer.