77 Pages Posted: 27 Apr 2006
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.
Keywords: Intellectual Property, International Intellectual Property, Intellectual Property Theory, Property, Health Law, Law and Culture
Suggested Citation: Suggested Citation
Sunder, Madhavi, IP3. Stanford Law Review, Vol. 59, 2006; University of California, Davis Legal Studies Research Paper No. 82. Available at SSRN: https://ssrn.com/abstract=897753