Madhavi Sunder: iP

by Lea Shaver | April 27, 2009 | news and ideas | 1 Comment

By Matthew Maddox, 1L

On Thursday,  Madhavi Sunder presented her upcoming book, iP: YouTube, MySpace, Our Culture at the weekly ISP Ideas Lunch. Sunder’s work pushes for reform in intellectual property law to better reflect the participatory character of culture that is becoming increasingly apparent in our current technological era.

Professor Sunder spoke for the need to expand our approach to IP beyond the narrow bounds of the economic focus that currently dominates the law and scholarship in this area.

Sunder challenged the conventional IP framework shaped by law-and-economics approaches on several grounds. Specifically, Professor Sunder argued that advances in communication and information technology like Web 2.0 and peer-to-peer sharing is spurring tremendous change in popular conceptions of culture that directly challenge the assumptions of the conventional economic approach to IP.

According to Sunder, economic analyses of IP tend to reflect and reinforce the static conception of culture as tradition–a conception that Michel Foucault argues is an unfortunate “spectator’s approach to the present.” An interdisciplinary perspective on culture that draws from anthropology, sociology, and philosophy reveals that a more participatory conception of culture is on the rise–one that recognizes the opportunity to fulfill democratic ideals brought in widespread cultural participation.

Our current technological era has offered means by which people who would traditionally be rendered invisible by exclusion from cultural production and distribution processes to write their own identities into the cultural fabric.

With this opportunity before it, Sunder argues, IP should be concerned with more than incentives to produce the maximum number of cultural commodities. It should promote the capacity for members of society to be active participants in culture and to author their own lives.

Thus, a shift in frame from an economic approach to culture toward a more interdisciplinary participatory conception of culture could more effectively promote human flourishing. This change in frame would recognize the inter-relationship between culture and development largely ignored by the law-and-economics approach to IP.

Professor Sunder noted several benefits brought in the participatory culture framework, including the reinforcement of democratic legitimacy through expanded participation in the political discourse spurring political processes, re-evaluation of ideas and expressions that comprise the cultural landscape, and dissent from norms dictated by illegitimate cultural authorities.

Professor Sunder also contrasted Lawrence Lessig’s “free culture” normative framework from her own “fair culture” framework on several grounds, including free culture’s failure to address cultural marginalization and account for how cultural participation and the exercise of cultural freedom should be expanded.

In my opinion, the insights brought in Professor Sunder’s interdisciplinary approach are overdue. The project she proposes for legal scholarship and reform promises a framework that reflects and protects a more democratic and inclusive conception of culture than is currently recognized in the law.

While this project is more than welcome, it is confronted by several related and daunting questions–a few of which were raised during the Q&A that followed Professor Sunder’s lecture:

• What exactly are the courts and Congress to make of “fair culture”?
• What aspects and segments of our cultural landscape that are protected and nurtured under our current IP regimes would be sacrificed by whatever reform is to result from the change in frame Professor Sunder advocates? Should we be prepared to make these sacrifices?
• How would the IP interests of the traditionally marginalized and newly emerging cultural participants be protected when the protection of larger corporate IP interests is presumably scaled back under the sort of reform advanced under Professor Sunder’s analysis?

Professor Sunder admits that these and similar questions currently have no easy answers, so, while her project is theoretically compelling and promises tremendous insight, the ultimate outcomes of this project are still far from certain.

To read more, visit this blog exchange at the University of Chicago Law School, where Sunder is currently a visiting professor.

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