By Madhavi Sunder, a law professor at the University of California, Davis
The intellectual property world is in an uproar about Judge Richard Posner’s salvo this month against United States patent law. In a piece in The Atlantic, Judge Posner argues that there are too many patents in America. He observes that patents can hamper innovation, just as they can incentivize it, and that they may be unnecessary to induce innovation in many industries.
Judge Posner is widely regarded as one of the fathers of law and economics. Many associate the movement with the idea of strong property rights, including strong intellectual property rights. Judge Posner intervenes to tell us that this understanding is wrong, that patents must only be granted where they in fact induce innovation. Judge Posner argues that the pharmaceutical industry is a “poster child for patents” because patents allow it to recoup the high cost of testing drugs for safety and efficacy.
I want to pick up where Judge Posner leaves off. Pharmaceutical companies may be the poster child for patents, but even here, there are important additional questions about patents. A patent on a medicine gives the holder a twenty-year exclusive right to produce that medicine. Because medicines are central to humanitarian concerns, we need to think about not only how the law incentivizes their initial creation and testing, but also how the law affects what medicines are created and how they are distributed. Why does our patent system produce multiple drugs to treat erectile dysfunction, but few to treat malaria and tuberculosis? Does the globalization of our intellectual property law through the World Trade Organization make it too difficult for poor people in the developing world to access generic versions of life-saving medicines?
In his short piece, Posner addresses market failure, but not the moral failure to distribute life-saving drugs to millions in the developing world who need them. In my book, From Goods to a Good Life: Intellectual Property and Global Justice, just out this summer from Yale University Press, I argue that intellectual property law should be founded on a vision of a just society, not just the narrow goal of simply producing more products demanded by the marketplace. Children with AIDS, and their families, nine out of ten of whom live in Sub-Saharan Africa, lack the market power to induce the inventions needed to save their lives.
My book looks broadly at intellectual property, not just with respect to patents in medicines, but also in other areas such as popular culture.
Let’s turn away from medicines to consider one of the most valuable literary intellectual properties today: Harry Potter. J.K. Rowling and Warner Bros. own the trademarks and copyrights in the series. Yet the Harry Potter experience extends well beyond their official offerings, with real-world Quidditch Leagues and even a World Cup with witches and wizards holding brooms arriving from across the world.
Last month I was a volunteer counselor at a Harry Potter Girl Scouts camp. While Rowling has abided literally hundreds of thousands of fan-fiction stories based on her characters posted on the Internet, she and Warner Bros. have at times sought to stop some fan activity, and under a dominant economic analysis, they may be within their rights to do so. “Only if the parodist is seeking to ridicule the original work,” Posner has argued, “is a market transaction infeasible and an involuntary taking therefore justifiable.” That is, where the user is not making fun of the original work, there is no “fair use” of the Potter characters and story details, under a law and economic analysis. But are kids attending these camps dressed as their favorite character really ridiculing Harry and Hermione? Rather than parody, fan activity is better understood as paying homage to the original works and their creators. We need to apply a broader cultural and social lens, in addition to economic analysis, to our intellectual property laws that affect human freedom in many dimensions today.
The fundamental failure in the economic story of intellectual property has to do with information’s role in cultural life and human flourishing. It is odd that the area of law most closely focused on Dickens, Rowling, Star Trek, Lost, Gershwin, and Prince is indifferent to understanding these creative works and their relationship to society. Culture is not just a set of “inputs” necessary for further innovation. Culture is the sphere in which individuals participate, create, share ideas, and enjoy life with others. Active participation in the cultural sphere promotes learning and qualities central to a well-functioning democracy, especially critical thinking and communal engagement. Cultural works engender empathy for the other and foster mutual understanding. My book turns to social and cultural theory to more fully explore the deep connections between cultural production and human freedom.