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Abstract:
Since Hardin, law and economics scholars have launched a crusade to expose the evil of the commons - the evil, that is, of not propertizing. Progressive legal scholars have responded in kind, exposing the perils of propertization. With the rise of the Information Age, the flashpoint debates about property have moved from land to information. The public domain is now the cause célèbre among progressive intellectual property and cyber-law scholars, who extol the public domain as necessary for sustaining innovation. But scholars obscure the distributional consequences of the commons. They presume a landscape where every person can reap the riches found in the commons. This is the romance of the commons - the belief that because a resource is open to all by force of law, it will indeed be equally exploited by all. But in practice, differing circumstances - including knowledge, wealth, power, access, and ability - render some better able than others to exploit a commons.

We examine this romance through the lens of the global intellectual property regime in genetic resources and traditional knowledge. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) transformed a global public domain in information by propertizing the information resources of the West - from entertainment to technological advances - but leaving in the commons the information resources of the rest of the world, such as genetic resources and traditional knowledge. Just as the trope of the romantic author has served to bolster the property rights claims of the powerful, so too does the romance of the public domain. Resourcefully, the romantic public domain trope steps in exactly where the romantic author falters. Where genius cannot justify the property claims of corporations (because the knowledge pre-exists individual claims of authorship), the public domain can. We review real-world strategies for resolving the romance of the commons. Just as recognition of the tragedy of the commons is the central justification for private property, recognizing the romance of the commons may justify forms of property uncommon in Western legal traditions.

public domain, intellectual property, TRIPs, international intellectual property, traditional knowledge, genetic resources, LINUX, Creative Commons, equality, distributive justice

Abstract:
James Boyle's cultural environmentalism metaphor laid the foundation for the recognition and protection of traditional knowledge and natural resources found in the developing world. The theory underlying the Convention on Biological Diversity (CBD) was that while traditional communities may not have invented knowledge about the medicinal properties of local plants, they ought to be rewarded nonetheless for their preservation and conservation of biodiversity through limited rights to control and compensation. Taking a cue implicitly from the environmental justice movement, which demonstrated the disparate effects of environmental harms on disadvantaged minorities, the cultural environmental movement illustrated how Third World peoples are disproportionately disadvantaged by intellectual property law, which historically has not recognized their cultural contributions as protectable works of authorship. But while this paper credits cultural environmentalism with offering theoretical legitimacy for traditional knowledge protection, it further considers whether the metaphor may also disable a more dynamic and modern view of traditional knowledge. In fact, traditional knowledge is far from static and archaic and much more dynamic than the environmentalism metaphor acknowledges. The makers of Mysore silk sarees in India respond to new market, technological, and cultural needs, for example, offering waterproof sarees in hi-tech designs to today's global consumers. I consider how the environmentalism metaphor may impede an understanding of poor people's knowledge (a term I prefer to traditional knowledge) as creative works of authorship deserving of ex ante intellectual property rights rather than just as rights afforded ex post to reward preservation of ancient traditions or to correct longstanding cultural and distributive injustice.

Abstract:
This book reveals the changing subject(s) and object(s) of commodification. It traces how the academic discourse evolved, both in its treatment of commodification as an academic topic (subject) of study and in its views of the purpose (object) of commodification; as well as how the discourse evolved in its views of the subject in a relationship of commodification (the owner) and the object in a relationship of commodification (the thing owned). The book begins by establishing a canon of commodification discourse. Debates over commodification have occurred primarily within two disciplinary frameworks: economics and cultural studies. We review the foundational works of scholars in these fields. We observe that in the two decades since these works surfaced, the subject and object of commodification have taken a distinctly cultural turn. What might broadly be called a cultural studies approach animates much of the new commodification scholarship published herein. For these scholars, commodification and culture are indelibly linked. The cultural study of commodities in motion focuses on the changing meaning of the commodity as it passes through various local and global circuits, including markets. Cultural studies theorists argue that, in many cases, individual agents, not just the hegemonic market, control those meanings. Thus, commodities are in motion both literally and figuratively. As they pass through various physical spaces, they also undergo semiotic changes. A new age of freedom through commodification, or what Arjun Appadurai has termed commodity resistance? According to some, yes. Read as a whole, the essays in the latter half of this volume suggest an emerging new conception of human flourishing itself: today, demands for equality include a right to compensation and control in the world's markets. This rhetoric hearkens back to old-style market-liberationism. The question is if, and how, they are different.

Commodification, property, intellectual property, markets, law and economics, law and culture, cultural studies, information studies

Abstract:
Is the libertarian vision of Nozick in ascendance in intellectual property, overshadowing Rawls's egalitarianism? Yes, and rightly so, some intellectual property scholars suggest. They argue that intellectual property law seeks to solve a fundamental problem of information economics: without intellectual property protections, the ready duplicability of information undermines incentives to create information. Armed with this economic insight and fortified a neo-liberal faith that markets with well-defined property rights in information will best promote liberty, these scholars would keep intellectual property's focus single-minded: to incentivize the production of information.

In this introduction to a symposium on "Intellectual Property and Social Justice," we argue that this view is too narrow. A variety of societal goals must inform intellectual property law because (1) understanding intellectual property's impact on a variety of social values helps us restrain maximalist intellectual property demands; (2) relying on the tax and welfare systems to remedy any resulting distributional deficiencies is unrealistic; (3) the raison d'etre of Western intellectual property laws is not necessarily globally scalable because of varying capacities to innovate; (4) we must attend to the kind of innovation that law spurs (for example, does the existing regime adequately incentivize the discovery of treatments for poor people's diseases?); and (5) we can best understand fair use doctrine not just as market failure but as an important component of free speech.

The fact that a legal regime might be created for one purpose should not mean that the implications of that regime for all other purposes should be ignored. The state raises an army because of the need to assure its security against foreign invasions. Yet, the state might deploy the army domestically in case of natural disasters. And it might establish limits on how the army might operate (such as prohibitions on torture and sexual harassment) - limits stemming not necessarily from self-defense but from other human values. Similarly, the fact that intellectual property law might be established for instrumental reasons does not mean that other purposes should not be considered when we set its metes and bounds.

intellectual property, distributive justice, Robert Nozick, John Rawls, incentives, information, social justice

Abstract:
A quarter century ago, Margaret Jane Radin interrupted the hegemonic law and economic discourse on property with a theory of personhood. And the New Jersey Supreme Court declared in the historic case of State v. Shack that property rights serve human values. From these our modern social relations theory of property was born. Now, the pundits declare that intellectual property has come of age. But is intellectual property philosophically and theoretically mature enough to face the world? Unlike its cousins property law and the First Amendment, which bear the weight of values such as autonomy, culture, equality, and democracy, in the United States intellectual property is understood almost exclusively as about incentives. To put it bluntly, there are no giant-sized intellectual property values. But there should be.

Intellectual property has grown, perhaps 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. Indeed, with full compliance to the TRIPS Agreement now required in all but the world's very least developed countries, bringing with it patents in everything from seeds to drugs, intellectual property law becomes literally an issue of life or death. Despite these real world changes, intellectual property scholars increasingly explain their field through the lens of economics alone, evidence of Amartya Sen's observation that theories have lives of their own, quite defiantly of the phenomenal world that can be actually observed.

The theory is behind the practice. On the ground, underground, and in the ether, intellectual property is spurring what the New York Times calls the first new social movement of the century. I show that in case after case, from MGM v. Grokster, to new licenses from the Creative Commons for developing nations and cultural heritage, to the rise of Internet auteurs of fan fiction, mash-ups, and machinima, to efforts to deliver medicines to the world's poor, to demands for Geographical Indications for sarees and other crafts of the developing world, and to the nascent global movement for Access to Knowledge, traditional economic analysis fails to capture fully the struggles at the heart of local/global intellectual property law conflicts. This Article builds from these examples to lay a foundation for a cultural analysis of intellectual property. I offer IP3 as a metonym. The twentieth century closed with the rise of identity politics, the Internet Protocol, and intellectual property rights. I suggest that the convergence of these IPs begins to explain the growth of intellectual property rights where traditional justifications for intellectual property do not. IP3 reveals intellectual property's social effects and this law as a tool for crafting cultural relations. Call it the ripping, mixing, and burning of law.

Intellectual Property, International Intellectual Property, Intellectual Property Theory, Property, Health Law, Law and Culture

Abstract:
Traditional communities oppose multinational corporations' efforts to patent traditional remedies. Native Americans contest the Washington Redskins trademark as disparaging. A small New Mexican Indian tribe sues the state government for using a spiritual symbol on the state flag. Australian aboriginal communities seek collective copyrights in their artwork. Indigenous peoples in Canada want copyrights in traditional stories. More and more, historically subordinated groups are turning to concepts of intellectual property - albeit grounded in identity and culture, not economic incentives - as a means to protect against cultural imperialism, cultural appropriation, and digital appropriation.

Current trends in academic thinking do not bode well for these new claims for property in personhood: commodification scholars warn that commodification will lead to the alienation, rather than the preservation, of indigenous culture. Anthropologists argue that property rights essentialize and freeze traveling cultures. Others view these claims as the first step on a slippery slope toward slavery. Finally, there are the critiques from intellectual property, where increasingly scholars bemoan what is called the new enclosure movement in ideas.

But the new claims for intellectual property rights as social relations cannot be dismissed easily. Assertions of power over one's own identity necessarily lead to assertions of property ownership. As Radin has taught us, property is an essential part of what it means to be fully human. Property enables us to have control over our external surroundings. Seen in this light, it is not enough to see all claims for more property simply as intrusions into the public domain - that is, bad intellectual property - or as cultural essentialism, that is, bad identity politics. Instead, we may begin to see them as assertions of personhood.

Just as contemporary property law recognizes property as social relations, we must begin to view intellectual property in a similar way. Indeed, to the extent that contemporary property law offers a balanced, complex, and dialogical view of social relations, the possibilities for property rights in identity are not entirely bleak. Indeed, where scholars increasingly criticize identity politics for relying on a monologic understanding of identity, property could be just what identity politics needs. In other words, while current claims for property in personhood tend toward essentialized views of both property and culture, they need not do so. Far more sophisticated understandings of both property and culture exist. We should not categorically fear the rise of new property rights. Rather, there is much to be gained from articulating competing descriptive and normative visions of intellectual property, particularly those that challenge the historically dominant paradigms.

Property, Intellectual Property, Intellectual Property Theory, Identity Politics, Law and Culture, Indigenous Intellectual Property, Traditional Knowledge, International Intellectual Property, Human Rights

Abstract:
Lieutenant Mary Sue took the helm of the Starship Enterprise, saving the ship while parrying Kirk's advances. At least she did so in the unofficial short story by Trekkie Paula Smith. Mary Sue has since come to stand for the insertion of an idealized authorial representative in a popular work. Derided as an exercise in narcissism, Mary Sue is in fact a figure of subaltern critique, challenging the stereotypes of the original. The stereotypes of popular culture insinuate themselves deeply into our lives, coloring our views on occupations and roles. From Hermione Granger-led stories, to Harry Potter in Kolkata, to Star Trek same-sex romances, Mary Sues re-imagine our cultural landscape, granting agency to those denied it in the popular mythology. Lacking the global distribution channels of traditional media, Mary Sue authors now find an alternative in the World Wide Web, which brings their work to the world.

Despite copyright law's grant of rights in derivative works to the original's owners, we argue that Mary Sues that challenge the orthodoxy of the original likely constitute fair use. The Mary Sue serves as a metonym for all derivative uses that challenge the hegemony of the original. Scholars raise three principal critiques to such unlicensed use: (1) why not write your own story rather than borrowing another's? (2) even if you must borrow, why not license it? and (3) won't recoding popular icons destabilize culture? Relying on a cultural theory that prizes voice, not just exit, as a response to hegemony, we reply to these objections here.

fair use, copyright, Mary Sue, fan fiction, cultural theory

Abstract:
Fears that globalization and heightened cultural traffic will lead to homogenization and the loss of culture has scholars and activists turning to intellectual property law to provide minority cultures with a legal means to protect their cultures from dilution and appropriation. This Article criticizes current arguments for using intellectual property to help minority cultures regain control of their communities. While acknowledging concerns about cultural integrity, Professor Sunder fears that appeals to law to reinforce a culture's borders may often be motivated by cultural elites' desire to suppress internal cultural movements for reform, rather than to protect a culture from external attack. Using as a case study the Indian right-wing assault on "Fire," a film depicting an Indian lesbian relationship, Professor Sunder argues that today, it is increasingly difficult to determine what cultural changes are part and parcel of modernity and what changes are spurred by a culture falling prey to imperialism. She warns that legal intervention in the name of preserving "cultural integrity" could have the effect of making cultural boundaries even more difficult to transgress. To the extent that legally regulated cultural boundaries could lead to greater repression of individual autonomy within culture, Professor Sunder argues that mixing intellectual property and identity politics is playing with fire.

Intellectual Property, Indigenous Knowledge, Identity Politics, Cultural Survival, Cultural Dissent, Law and Identity

Abstract:
In his important new essay, "Imposed Constitutionalism," Noah Feldman shares his dilemma as an American constitutional advisor to the fledgling democracy in Iraq: How can we Western outsiders exercise influence in constitutional processes without undermining local autonomy and democracy itself? His answer: We cannot. Ironically, the conclusion of his insider's account is that political outsiders ought to take no part in - indeed, they ought not even to influence - the constitutions of new democracies. Western influence is imposition.

It is brave of Feldman to describe the very actions that brought him fame as problematic. And it is rare to see a person with real power to affect a country's constitution graciously make the case for abdicating that power. But Westerners' deference to local elites and our elision of internal traditions of dissent for equality within new Islamic democracies has the perverse effect of buttressing local fundamentalists' claims that equality is Western and anathema to Islam. The problem is that while Feldman sees democracy in the Muslim world as homegrown, he seems to imagine egalitarianism as largely exogenous to Islamic democracy. Thus, egalitarianism becomes imposed by Westerners in ways that undermine democratic self-determination. But, as my own research has shown, Islamic communities increasingly demonstrate endogenous commitments to equality. These commitments are evident especially in the challenges posed by Islamic women reformers to traditions of patriarchy offered under a religious guise. Depicting equality claims as imposed works against the claims of internal reformers who would seek to reconcile Islam and equality and who desire affirmation of their views from a sympathetic global public. The unintended consequence of Feldman's proposal is that we side with the fundamentalists instead of the egalitarian reformers.

I suggest instead that now is the time for active engagement - for throwing our lot in with those who seek an Islamic democracy that is respectful of women's equality and fundamental rights to open debate and critical reason. An enlightened constitutionalism, in contrast to an imposed constitutionalism, recognizes that modern nations are much more heterogeneous and porous than previously imagined. Enlightened constitutionalism would not shut down the channels of transnational dialogue in the name of facilitating self-determination, because it understands that external influence on the internal is inevitable - that deference is inevitably choice. Furthermore, it sees cross-cultural discourse and dissent as important goods in themselves - for example, as sources of support for internal reformers and as potential inspiration for new ideas. In the end, the commitment of enlightened constitutionalism to embrace dialogue even in the face of postcolonial and neocolonial power turns on a particular understanding of human beings themselves. Enlightened constitutionalism reflects the cosmopolitan constitution of us all: the inspiring human ability to create ourselves as historical beings, selecting and modifying diverse traditions to suit our changing needs and aspirations in modernity.

Abstract:
Human rights law has a problem with religion. In a postmodern world in which the nation-state has been deconstructed and eighteenth- and nineteenth-century notions of unmediated national sovereignty have been properly put to rest, religion - and its attendant category, culture - represent the New Sovereignty. September 11th crystallized this fact. The infamous Taliban regime in Afghanistan assumed power in 1996 and immediately began stripping women of fundamental human rights. But war, not law, defeated what was perhaps the world's most ruthless fundamentalist regime. This Article argues that religion qua religion is less the problem than is law's construction of this category. Premised on Enlightenment theory, law has a fundamentalist view of religion as law's other. Confident that freedom in the public sphere is freedom itself, law posits and, indeed, preserves religion as an extralegal sphere that is static, irrational, and imposed. Individuals may exit religion but not reform it. Increasingly, fundamentalists are taking advantage of this legal tradition. Because law does not recognize religious communities as contested and subject to change, legal norms such as the freedom of religion and the right to culture defer to the claims of patriarchal elites. The result is that, in case after case in both national and international law, law is siding with fundamentalists over modernizers. But on the ground, human rights activists working in Muslim communities are piercing the veil of religious sovereignty. In the work of these activists, this Article hears the rumblings of the New Enlightenment: Today, individuals demand democracy, reason, and rights within religious and cultural communities, not just without them. Examining the campaigns of reformers in Muslim communities through the overlooked efforts of transnational human rights networks and archives of women's human rights education manuals - illuminated by interviews with leading activists from around the globe - this Article identifies an emergent, conceptually coherent framework for operationalizing modernity and freedom within a context of culture and community. This New Enlightenment upsets the foundation of the legal understanding of the right to religion, which has deferred to leaders' views over those of members. While feminists have challenged the absolute sovereignty of the private sphere, particularly on the issue of violence, women's right to contest and create normative community - that is, to make cultural and religious meanings - has been far less theorized. This Article suggests that women's human rights law must go beyond freedom from violence to freedom to make the world.

Abstract:
Gay Scoutmasters contest what it means to be a Boy Scout. Female Pueblo Indians denounce tribal rules as sexist. Muslim women reinterpret the Koran and emphasize women's right to religion and equality. In the twenty-first century, exposure to modernity and globalization has created a society that now more than ever is characterized by cultural dissent: challenges by individuals within a culture to modernize, or broaden, the traditional terms of cultural membership. Cultural dissent symbolizes a movement away from imposed cultural identities to a new age of autonomy, choice and reason within culture. But current law, stuck in a nineteenth-century view of culture as imposed, distinct, and homogeneous elides cultural dissent. Under current law, cultural dissenters have either a right to culture (with no right to contest cultural meaning) or to equality (with no right to cultural membership), but not to both. Through a close reading of Boy Scouts of America v. Dale, Professor Sunder illustrates how, in the name of preserving cultural distinctiveness, freedom of association law authorizes the exclusion of those whose speech challenges cultural norms. Law's conception of culture matters. As cultures become more internally diverse and members appeal to courts to determine a culture's meaning, increasingly, it will be law, not culture, that regulates cultural borders. Law's outmoded view of culture leads it to reestablish traditional cultural boundaries, in some cases making them stronger than ever. This need not be the case. Professor Sunder describes how a cultural dissent approach to cultural conflict - which recognizes dissent within culture - would prevent law from becoming complicit in the backlash project of suppressing internal cultural reform.

Law and Culture, Constitutional Law, First Amendment, Free Speech, Dissent, Liberty and Equality, Law and Humanities, Discrimination Law and Justice, Legal Theory, Jurisprudence, Cultural Studies, Globalization, Modernity, Gay Rights