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Thursday, January 12, 2006

Cultural property and legal prescription

At the AALS Law & Anthropology session on the “cultural analysis” of IP last Friday, there was a nice little dispute over what a humanistic, or culturalist, approach to intellectual property would look like.  The respondent/ panelist Mark Lemley (Stanford) argued that because “economics” (which he defined in opposition to circa 1970s Chicago school law and economics, though without too much other definition) is more “normative” than “cultural studies” (which he defined, I assume, by reference to the other panelists as including cultural history, textual interpretation and analysis, and anthropology), economics trumped cultural studies and could incorporate the latter’s insights into its master discipline/ approach.  By “normative,” I presume Lemley meant prescriptive, since cultural studies and the humanities generally are nothing if not normative with a capital N.  Humanistic scholarship consistently makes judgments about the value of cultural texts and practices.  So he over-simplified that; and, in addition, he was pilloried by panel and audience alike (since the vocal members of the audience seemed clearly pitched against him) for assuming that prescription is the essential and necessary goal of legal scholarship.  The other panelists were Julie Cohen (Georgetown), Sonia Katyal (Fordham), Susan Scafidi (SMU), and Alexander Bauer (an anthropologist affilated with GWU).

In most other contexts, this could be just a rehash of the tired old Crits v. Law & Econ debate.  But in the context of cultural texts and production, the humanities used to have a long prescriptive tradition that was opposed to or skeptical of the market, and that sought means for state intervention.

Folklore and cultural anthropology once celebrated the “folk” and sought ways to protect it, while the mass culture debates among sociologists and literary critics of the 1950s and 1960s sought to protect and promote high culture and to beat back mass culture.  Although they didn’t necessarily have an IP focus, lots of legislation and appropriations at the federal and state level have sought to further these goals by giving us, for example, folklife festivals, the NEA, and PBS.  And other countries, such as Canada and Britain, have a long tradition of culturalist academics and intellectuals engaging in prescriptive media and culture policymaking.

So the idea that cultural studies is not prescriptive can’t be right.  But what of an intellectual property regime that would further normative commitments shared by culturalists?  Again, the problem isn’t necessarily without resolution.  One could attempt to construct an intellectual property regime that would attempt to favor, by virtue of the distribution of entitlements (duration of copyright? extent of protection? amount of compulsory license fee?), some privileged cultural practices (folk and high culture in culturalism's earlier versions) over some other non-privileged form.  It would probably look pretty foolish, it probably wouldn’t work, and there would be significant political resistance from the mass cultural producers and distributors likely to be hurt by it, but you could come up with something.  From what I could tell, however (and I admit that I arrived about 25 minutes late), no one on the panel seemed to have come equipped with a legislative package and common law toolbox in the way that a more traditionally instrumentalist law professor would, and they seemed to be comfortable as such. 

The problem for culturalists, as the panel made clear, is not that cultural studies can’t be prescriptive, it’s that the related epistemological and political shifts of culturalism towards postmodernism and cultural populism make prescription for intellectual property law (and any cultural policy) really tricky, if not downright unattractive.  Cultural studies’ postmodern tendencies deconstruct the “authenticity” of the folk, while its populist tendencies attempt to recuperate at least parts of mass culture while resisting normative claims about the necessary value of “high culture.”  To be in favor of the popular and to complicate the folk is by definition to be skeptical of state intervention that would protect the "folk" and promote "high culture," and to be less dismissive of the market.  Don't get me wrong -- I'm a cultural populist through and through and a culturalist by training. But in its excesses, the approach as it is currently practiced can also lead to an endless deferral of policy and even politics in favor of either quite abstract theorizing or banal description.  My point is that as a matter of history and of epistemology, there’s nothing necessarily non-prescriptive about a culturalist approach – it’s just the state that the work in that tradition currently finds itself in.

Posted by Mark Fenster on January 12, 2006 at 10:08 PM in Culture, Legal Theory | Permalink

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This seems like a strange comparison in part because the focus of each movement is different. The economic approach to IP (as I understand it--not sure how the panelist did) is largely indifferent to the content of cultural property. If a law or decision maximizes efficiency/wealth, they're for it, otherwise, they're against. By contrast, culturalists think of content as the primary criterion driving IP policy (however much there's a reluctance to commit to a particular vision of the good in that respect). There's a capacity to be prescriptive in both, but with respect to very different criteria.

As for the current sense that culturalist IP is not prescriptive, it seems right that the movement is reluctant to commit to a particular vision of how culture should be constituted (whether high v. low art or something else). There are, however, exceptions. Madhavi Sunder, for example, is (in my view, rightly) critical of first-world appropriation of developing nations' cultural property (e.g., in the form of patenting traditional folk remedies and then enforcing the patent worldwide through TRIPs).

Posted by: Dave | Jan 13, 2006 11:17:20 AM

Maybe the problem, as understood by the culture types, is more complicated than can be solved by adding a bell or slight tilt on the blunt instruments that are the patent and the copyright. Maybe they're just unwilling to condescend to working in the environment legal theorists work in. The average engineering PhD probably doesn't want to help people in the developing world do more with their bamboo. I'm sure plenty of academic economists have nifty ideas that could never be implemented in our lifetimes, because they differ so radically from how we currently run certain very large, non-autocratic systems. Make your culturist God for a day and you may see her interested in doing something practical.

Posted by: MT | Jan 13, 2006 8:39:38 PM

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