by Madhavi Sunder. New Haven: Yale University Press, 2012. 272 pp. Hardcover. $35.00. ISBN: 978-0-300-14671-4.
Reviewed by Angela G. Narasimhan, Department of Political Science and History, Keuka College. Email: anarasimhan [at] keuka.edu.
For readers aware of and concerned with the disproportionate effects of globalization and modernization across different regions, cultures, and classes, the notion that legal structures can mirror and aggravate inequalities is a familiar one. And it would come as no surprise that contemporary intellectual property law suffers from the same deficiencies, primarily serving to advance the interests and fortunes of those already in possession of wealth, access, and power. Although one could simplistically describe Madhavi Sunder’s 2012 book, FROM GOODS TO A GOOD LIFE: INTELLECTUAL PROPERTY AND GLOBAL JUSTICE, as advancing a similar thesis, she offers much more: a pluralist reconceptualization of intellectual property law that is both highly engaging and entirely novel.
One of the best examples of the challenges facing contemporary intellectual property law is the illegal downloading of music, and early on in the book Sunder makes a powerful analogy that clearly identifies her normative contribution. While “traditional accounts of intellectual property understand this law as a mere instrument to incentivize efficient production,” she argues, it should be seen as a vehicle for dynamic cultural change and conflict that often involves “the ripping, mixing, and burning of” conventional transactional structures and legal notions of ownership (p.21). From this perspective, intellectual property is part and parcel of culture, and Sunder makes the case that when its sole goal is to preserve exclusivity it often ignores or disadvantages subordinated or critical forms of cultural expression. Her objective is to look beyond the regulatory capacity of intellectual property law to its role in promoting and protecting culture as a form and source of “participation, livelihood, and shared meaning” (p.8). The book therefore redirects our focus to intellectual property as a measure of “cultural liberty,” illustrating how “democratizing the capacity to make and content culture can distribute power to shape meaning and enhance the capacity to contest hegemonic meanings – so long as a copyright and trademark laws do not stand in the way” (p.11).
Sunder acknowledges the influence of critical theorists Amartya Sen and Martha Nussbaum throughout the book, and her approach shares their concern with justice, fairness, and freedom. It is important to note, however, that Sunder does not interpret intellectual property as a right. Instead, the book explores its potential to promote human development, moving beyond its traditional use as a tool for the advancement of economic values such as [*646] efficiency and GDP. This argument is put forth in Chapter 1, which argues that the economic model fails to capture how intellectual property law typically distributes its benefits across existing power structures. Although this part of the book serves as a critique of existing theory on this area of law, it also provides a helpful overview of its intellectual origins. And, early on Sunder provides the reader with an illustration of how the social and cultural values of her approach better capture the complexities of recent trademark and copyright disputes. Giving the example of an infringement lawsuit over an Indian Harry Potter spin-off, she reminds us that “law views unauthorized imitations of copyrighted expression – from songs to characters, settings, and plots – as theft” (p.33). This view is challenged by inconsistent application: other examples of fan-fiction have been tolerated by the owners of original content, including J.K. Rowling, and such forms of expression have been excluded from fair use doctrine despite their similarity to parodies, which are protected. It is also too narrow, according to Sunder, recognizing neither “the benefits of working through culture – that is, playing, learning, and creating through the cultural objects given to us,” nor the more “interactive and participatory” forms of culture that have developed rapidly in recent years (p.35). Although one might still substantiate restrictions on such expression based on economic utility – some might look at the Harry Potter lawsuit and wonder if Rowling was justified in pursuing the Indian spin-off rather than other works because of its greater reach, visibility, or published form, for example – Sunder does not reject this approach outright. Instead, the goal outlined in this chapter is to “broaden the descriptive and prescriptive framework for understanding intellectual property” to include “concerns about equality, social relations, and democracy,” and her examples successfully do so both here and in other parts of the book (p.44).
In Chapter 2, Sunder explores her cultural approach to intellectual property, which revolves around the free and fair exchange of different forms of expression within a “participatory community” (p.46). This view has links to the Habermas and the assumption that “intellectual works are the means, not the ends, to Enlightenment” (p.51). Because of the emphasis on economic utility and entrenched power structures, she argues, the opposite has occurred: “law protects the incentives of cultural elites, from Apple to Disney, to produce cultural products for mass consumption,” turning a process embedded with meaning and propelled by rapid technological advances into a fixed commodity (p.56). For Sunder, intellectual production should have plural goals of “promoting freedom, engendering equality, and fostering human and economic development” (p.64). For example, a YouTube video with a young person lip-syncing to Beyonce’s “Single Ladies” does involve the unauthorized use of a licensed song. While the license is meant to protect the creator’s effort, creativity, and livelihood, the importance of which Sunder acknowledges, the adaptation of it by various audiences also has value and meaning that merits consideration. As the book points out, such videos have been used a tool for self-empowerment and expression by gay youth, illustrating the importance of “cultural production, not just consumption” (p.81). [*647]
Not only does contemporary intellectual property law have a limited view of what constitutes culture, but Sunder is also concerned that it reflects only established customs and power structures rather than cultural production created outside of or aimed at challenging them. In Chapter 3, FROM GOODS TO A GOOD LIFE turns to the issue of fairness in the distribution of intellectual property rights and its effect on “one’s social standing, health, and well-being” (p.83). The examples given to illustrate this are tragic, such as the song with origins in South Africa that would eventually make its way to the U.S. and make millions for Disney as “The Lion Sleeps Tonight,” while its impoverished composer died from an untreated disease. In this case, intellectual property law privileges the adaptation of folk or traditional culture by the West or developed world. In others, it can favor a dominant account of a particular aspect of culture, such as a historic event. The book’s contribution rests on asking those involved in the creation and interpretation of property law to consider equity and several fundamental tenets of what she describes as “fair culture” (p.94), such as the “recognizing vulnerability to exploitation” and “support for non-market based cultural production” (pp.97-99). These tenets are linked to her emphasis on inclusion in the participatory community, which includes “full participation by all members of a culture in order to critically engage traditions and bring about cultural change” (p.100). In outlining this vision, she effectively responds to possible critiques of a cultural approach to an expansion of intellectual property rights as well as identifies existing reform efforts that are working to advance similar goals, including public domain reform.
The remaining chapters of the book offer more focused case-studies that apply Sunder’s cultural approach to intellectual property law, providing insight into alternative forms of intellectual production as well as their connection to the human values that she emphasizes, such as recognition, livelihood, and economic or social advancement. She explores the creation and exchange of fan-fiction and similar artistic mediums further in Chapter 4, offering examples of superheroes, Star Trek plotlines, and children’s characters that have been reimagined as a means of exploring and expressing identity by marginalized individuals throughout the world. Defending against interpretations of fair use that view it as merely a protective mechanism or a threat to cultural foundations, Sunder advocates a more permissive approach that acknowledges that “the reworking of popular stories to assert one’s own value is empowering” and can offer “the path to new livelihoods and roles” (p.125).
Empowerment is also the theme of Chapter 5, which makes the case that the law should do more to recognize and promote the intellectual production of subordinated peoples. Using success stories of the marketing of third-world cultural products, Sunder advocates for increased recognition of the poor as “both receivers and producers of knowledge” (p.144). It is also important to recognize the third-world as a source of intellectual property on equal terms, she emphasizes more explicitly in Chapter 6, challenging the conventional portrayal of the West as innovator and the East as pirate. Instead, the book [*648] provides several examples of “global borrowing and appropriation” that defy this stereotype, including uncredited similarities between Spielberg’s E.T. and an earlier Indian film, THE ALIEN, as well as Disney’s THE LION KING and a Japanese series entitled KIMBA THE WHITE LION that predated it (p.153). A narrow view of intellectual property is bound to overlook such instances of copyright violation because it fails to “take into account the ways in which actual global inequalities, combined with long-standing cultural biases, may impede the free and fair exchange of culture” (p.172).
Even more serious consequences can result from a narrow view of intellectual property in the patent system, which the book turns to in its final chapter, where access to medical innovations is a matter of “life and death” (p.177). Although Sunder concedes that aggressive intellectual property law is not the only factor that limits such access to the poor, she argues that it has two important effects. First, it creates a consumer-driven system for medicine in which the third world is not able to participate or benefit from. Second, it hinders the ability to develop new medical technology and knowledge by newcomers to the competitive global marketplace, such as countries like India. Both effects ultimately contribute to a catastrophic cycle, in which “the loss of human lives thwarts human development at the most basic level” (p.199).
Although FROM GOODS TO A GOOD LIFE lacks a formal conclusion, which might have helped readers connect its ambitious theoretical goals to the issues discussed in its final chapters, it succeeds in putting forth a clear and cohesive normative framework. The concerns raised in the book will not be new to readers, but this framework and the cultural approach that Sunder outlines in the book offers a fresh perspective that is both theoretically ambitious and practically-oriented. In doing so, she achieves what she aspires for the field: a new perspective that reimagines and reinvents – or perhaps, rips, mixes, and burns – conventional views of intellectual property to encompass plural forms, sources, and objectives of cultural production.
Copyright 2013 by the Author, Angela G. Narasimhan.