Intellectual Property Harms: A Paradigm for the Twenty-First Century

Abstract

This short essay is part of a larger book project that investigates how contemporary intellectual property debates, especially in the digital age, are taking place over less familiar terrain: fundamental rights and values. Its argument draws from the diverse, personal accounts of interviews from everyday creators and innovators and focuses on descriptions of harms and, as some say “abuses,” they suffer within their practicing communities. The harms are not described are the usual harms that intellectual property law is understood to prevent. Typically, intellectual property injuries are conceived in individual terms and as economic injuries. An infringer is a thief. A corporation overclaiming intellectual property rights is greedy or engaged in immoral financial conquest. Intellectual property injuries are conceived as uncompensated benefits, foregone licensing fees, or substitutional rivalry. The individualized and economic terms are unmistakable. But accounts from everyday creators and innovators instead describe harms to communities, systems, and institutions. They concern patterns of violence, institutionalized corruption and incumbency biases, and disproportionality that is experienced as irrationality. The underlying concern is these intellectual property harms, which intellectual property law for the digital eco-system seems to promote, erode the interdependent connections and mutual obligations that secure individuals in groups (communities, organizations and institutions) on which we rely to live and work. This leads to a sense of personal and professional precarity further degrading essential structure and relations, threatening an essentially sustaining belief of a shared fate in our connected times.

Interviewees describe a longing for affective relations with invigorated political, economic, and social power built around the new forms of alliances that can resist the power of capitalized incumbents. The accounts from everyday creators and innovators conjure an ideal structure with moral narratives of collaboration, accountability, and quality standards. These are antidotes to the digital age’s exacerbation of intellectual property’s doubling-down on ownership, exclusivity, and accumulation or appropriation for its own sake. When translated to more generalizable values, these are calls for reciprocity, transparency, and proportionality and (whether or not they know it) a return to basic rule of law principles. In doing so, everyday creators and innovators revive the rule of law’s fundamental purpose, and what, in intellectual property law is an ultimate goal: to promote the common good by promoting and protecting a healthy public sphere. The surprising conclusion is that accounts of intellectual property harms do not champion the protection of private property as maximizing science and the useful arts but instead the protection of socio-political systems that promote fundamental values the rule of law serves.

Note: This symposium essay is dedicated to Wendy Gordon and was part of a conference in June 2019 at Boston University School of Law celebrating her contributions to the field of intellectual property.

Keywords: intellectual property, copyright, trademark, patent, empirical studies of IP, law and the humanities, law and narrative, law and economics, jurisprudence