Cultural Environmentalism at 10: Madhavi Sunder

Madhavi Sunder, liveblogged by Joe Gratz.

Points I wrote down: Geographic indications (GIs) offer the possibility that local artisans can stay in place, and not have to give up and move to the cities for modern work. She told the story of Mysore silk saris, whose makers updated the look after they got a GI designation, learning how to get the traditional sheen on new – but natural – colors like lilac. (Query: did the GI spur this? Can’t other producers copy the new colors and designs, but not the GI?)

GIs are particularly suited to recognizing poor people’s knowledge. GIs are collective and relatively cheap to acquire. There are many limitations to the Indian GI law – for one thing, it only protects knowledge if it’s related to the land. But people aren’t fixed like that; they move and intermarry – we need more recognition of the dynamics of culture. Also, there are always traditional hierarchies within a group; who benefits from new rights for the group is a big concern. There are also free speech concerns and competition issues. The basic economic question is are these good overall if the Indian poor protect Basmati rice but can’t make whiskey?

Boyle of course knows that the public domain is socially constructed, not a reified negative of property. He was writing when economic language was hegemonic. Today, we can discuss distributional and social effects without the language of neoclassical price theory. WIPO now accepts the need for a development agenda. Traditional IP wants more goods (books, drugs) but doesn’t ask who makes them or how they’re distributed – we can.

Terry Fisher (slightly expanded compared to Joe’s account; at this point I realized I could take notes on my laptop and I didn’t know he was liveblogging): Sunder’s paper shows the continuing power of the related themes of environmentalism and the public domain, as well as the hazards of those metaphors.

In the 17^th and 18^th centuries, a common depiction of Native Americans was noble savages, living on but not altering the land. This idea, in Europeans’ minds, justified displacement by productive Europeans. Because they devalued living lightly on the land, this image justified imperial expansion. William Cronon had a different criticism: It got the facts wrong. New England before the Europeans was cultivated, an enormous garden, modified by Indians to suit their own ends. In particular, they removed underbrush to enable game to graze and Indians to hunt more effectively. Given this new perspective, we have to reconceptualize the nature of the injustice of conquest – it’s not the displacement of conservation by nonconservation, but displacement of one civilization by another. Sunder’s paper makes a similar move: traditional knowledge is no more stable, raw, or unproductive than the environment created by North American Indians.

Fisher offered some possible responses: suppose we modified TRIPs to require recognition of a defense to patent infringement that the raw material used by the developer of a patented product or process had been extracted in violation of local laws. Ordinary patent cases would then be able to check patentees’ compliance with natural resources laws of poorer countries, putting teeth into an existing system that has no bite. This would confer upon tropical countries power to select from a wide range of ways of defining knowledge rather than relying on WIPO or the US Congress to do so. They might adopt best practices, operate as cartels, or do something else. Our responsibility would not be to advise them on what IP should be but advise them on options on configuring their local system, some of which might be IP but others not.

Imagine another international norm: each member country shall recognize as a defense to copyright infringement that an infringed work constitutes a reproduction of a work registered in a database, the terms of which are defined by the laws of each country (unless the infringed work was licensed). The database would include things like kente cloth, traditional forms of dance – copyright owners couldn’t assert copyright claims against others unless they made deals with groups determined by the states of origin.

This would take a step towards a global, rather than nationally harmonized, copyright scheme, but one dependent on formalities, the lack of which is one of our biggest problems.

There is a hazard: in jurisdictions like Guatemala, indigenous groups represent significant political power; when they’re smaller and more vulnerable, we may perpetuate injustice. But it’s unlikely that we can solve that with a top-down system. The best response to that continuing difficulty is to recognize the importance of political activity at the national level rather than resting our hopes on WIPO.

Arti Rai: Sunder’s big claim is that we should move beyond utilitarian thinking in our IP scholarship. Many of those here have done so, many of us haven’t. There is a focus on wealth maximization in IP scholarship. It’s done in response to maximalist claims – we need to engage people on the same plane as their arguments or we won’t be convincing.

We shouldn’t caricature law and economics, which doesn’t necessarily focus on wealth maximization. Welfare economics can take into account distributional considerations, though one has to be willing to make interpersonal comparisons of utility to do that. The most recent comprehensive attempt to provide a normative foundation for law and economics, Kaplow and Shavell, explicitly adopts a welfarist model and talks about the importance of distributional effects.

WHO has mobilized around quality-adjusted life years that could be increased by spending on poor people’s health – economics can be helpful to our goals. But it is much harder to track social welfare than it is to track dollars, so the metrics are controversial. If we’re going to have our arguments taken seriously, we need quantitative measures – a human development index for IP. Relatedly, IP regimes for poor people are subject to charges of creating another anticommons. To answer those claims, we need explicit arguments about social welfare.

Institutional competence: IP may not always be the best mechanism for dealing with social welfare and distribution. We don’t have to think it should be dealt with only through the tax system, but in the US system, pharmaceutical issues are probably best addressed through insurance.

Sunder’s smaller but significant point: Equating traditional knowledge with a domain that must be conserved has the unfortunate effect of making it seem static.

Poor people’s knowledge is not written down, and under US law unwritten foreign knowledge can’t serve as prior art. It’s a rule of evidence to prevent false claims for prior art; courts are skeptical even about evidence of domestic unwritten use. But developed countries seem to agree that we should end discrimination against foreign unwritten prior art.

We like to centralize rights in a single holder – which is problematic, but does reduce transaction costs. GIs allow some knowledge to be owned collectively; we need to do more work on ways of thinking about modifying Western IP systems to allow collective knowledge, for example for work done between firms. Prepatentable information can be worked on and owned collectively.

Sunder’s responses to comments: Most IP scholars haven’t taken advantage of welfare-based economics, and we should. We should also look to social and cultural theories for why we create and what the social meaning of our creation is. There is a convergence of intellectual property, identity politics, and internet protocol – what does it mean to have social movements turning to IP (intellectual property)? We need a better understanding of IP as a mechanism for structuring social relationships, not just for producing goods. What kind of culture do we want to create?

Yochai Benkler objected to the idea that IP could be good for the poor if designed with them in mind. Just because we can recharacterize the crumbs that fall from the table of the IP system as IP-based doesn’t mean IP gives the poor value. Sunder makes an empirical claim: Women will not be beaten if we give them IP protection, because their work will be of more value. Benkler doesn’t believe it; he thinks it’s better to work on a global coalition to roll back this regulatory system.

Sunder responded: The domestic violence example from her paper is meant to show that we need to think about how our rights are interrelated – women who lack material rights to their novel cultural contributions (which could fit easily in to the IP system but are being ignored) are poorer and weaker than if they had such rights. The absence of protection amplifies the social effects of the existing system. Sunder is for a robust public domain, but wants to investigate how the rhetoric might not include everybody. We can’t be so afraid of expanding new IP rights when it may be just in some cases to grant them. That’s the problem of the binary between IP and the public domain.

James Boyle expressed what he termed a crude political fear, which closely tracked the Benkler-Sunder exchange: There are two schools of thought in WIPO – (1) optimistic: the traditional knowledge initiative can show the narrowness and blindness of current IP conceptions, which need to bring together effects on environment and other distributional issues; and (2) cynical: access to knowledge is a threat to WIPO, and traditional knowledge protections are the bone to be thrown. The latter position is, “you can have your little beans, just give us more – more DMCA, more database protection, more.” In this situation, the question is not whether you or I could come up with beautifully crafted rights drawing on some non-effeciency-maximizing metric. Rather, the way that it’s developing at WIPO is that lots of people think it’s great to open Lemley’s can of worms and split the “access to knowledge” people with the promise of rights for some.

Sunder: (1) Her primary aim is to engage with access to knowledge: what is the development agenda we’re crafting? We don’t want to fall into the same traps as the existing system. Access to knowledge in one aspect is about distributing the knowledge goods of the West to the South/East – getting them the drugs/the texts. But we should also think about the future: how to build the capacity to produce knowledge, because that’s where wealth is going to come from. (2) Broadly, about fear: Deconstruction was scary, now it’s not. Cultural analysis is scary now, maybe it won’t be in ten years.

Maggie Chon: These comments illustrate how fear of maximalism has shaped our beliefs. Sunder’s project is looking at IP from poor women’s perspective, but we get resistance to that based on our fears of what others will do. What’s important in the work is bringing those outside stories – people who’d like the incentivizing effects of IP, however defined. Artisans do need protection from cheap copies made in China. (My thought: so did Bonazoli want protection for her heart spoons; this is an old, old argument in IP and, for that matter, globalization. And Sunder recognized this with her point about whiskey – those cheap copies in China are made by poor people too, and they might object that your art is my dinner.)