AALS Section on Law and Anthropology, part three

2006 AALS Meeting, Jan. 6
Section on Law and Anthropology
A Cultural Analysis of Intellectual Property

Susan Scafidi summarizes her participation on the panel at her blog. I will add a few comments.

According to Scafidi, the value IP is charged with supporting is creativity, which, unlike equality, autonomy, and democracy, cannot be mandated or well-defined. I agree with everything except the parts about equality, autonomy, and democracy, which have their own problems of definition and preservation through legal structure. But I did very much like Scafidi’s explanation of the basic tension in IP law: Creativity is only successful if good ideas are copied.

Our cultural values are revealed by and embedded in decisions about what kinds of creativity get legal protection. Some things (like fashion) are generally excluded from IP protection, decreasing their economic and cultural value, for reasons tied to race, class, and gender. I particularly liked Scafidi’s discussion of how class and gender popped up in policy debates: People who opposed extending IP rights to fashion in the 1930s asked rhetorically what the poor working girl would wear, but neglected to ask what the poor working girl would read.

Mark Lemley argued in the comments period that we should not fall into the trap of “if value, then right.” Specifically, fashion’s economic value could be increased by refusal to protect, and I think that’s right, but Scafidi’s point about cultural value – and about why we’re so kind to fashion when we ruthlessly grant copyright and patent protection to software – is still valid. Moreover, Lemley’s argument is systemic: the overall value of fashion as an economic sector may be higher because no one can take monopoly profits based on legal rights to exclude. But highly creative individuals within that sector may make less money because we’ve judged their creativity to be less worthy of protection than the advances made by individuals in other creative fields.

The gender aspects of the problem are the most salient for me. Low-protectionists like me are comfortable with the argument that people will create art even without legal protection because of the intrinsic, reputational, and other non-copyright rewards for creativity. Empirically, this is true. Nonetheless, when you start to compare fields that get IP protection (software, sculpture) with fields that don’t (fashion, cooking, sewing), it becomes uncomfortably obvious that our cultural policy has expected women’s endeavors to generate surplus creativity but has assumed that men’s endeavors require compensation, just as our society has expected women to do the hard work of raising children and keeping house out of love and duty but not expected men to show up at the factory for the same reasons. Propertization of work done out of love would lead to the horrors of the market (bravely borne by men) – where have we heard that before?

Lemley invoked the principle that ideas are too important to be protected by monopoly IP rights. Although I agree with him, even if Scafidi was understood to be arguing for equalizing protection upwards, nothing she said suggested that ideas should be protected – a dress is no more (and no less) an idea than a painting.

I agree with Lemley that the solution is probably not to grant new IP rights in traditionally excluded areas but to decrease the rights available to other kinds of creativity. But somehow I don’t see that happening any time soon. This is the kind of dilemma Catharine MacKinnon described when she analyzed the conflict between equality and difference feminism. Where, I wonder, is the dominance theory of IP?