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I’m at the Cultural Environmentalism at Ten conference. The next speaker is Madhavi Sunder. These are my impressionistic, not-for-attribution notes.

In late December 2004, I traveled to India. The developing world was about to be covered by TRIPS. The story I thought I was going to witness — the connection between IP and the Indian poor — didn’t appear. People were sincerely beginning to ask whether IP could work for them. There were ecstatic stories about farmers and artisans signing up for geographical indication protection. This was inserted into TRIPS at the behest of French wine makers, but rural Indian farmers and artisans saw it as a way to differentiate their goods and maintain their traditional ways of life.

There is a connection between this IP turn in India and cultural invironmentalism, but not the connection I was expecting. Cultural environmentalism helped to buttress the protection of traditional knowledge. At the same time, cultural environmentalism is a stumbling block to recognizing poor people’s knowledge as IP.

We must be wary of this modern effect of the metaphor — but first, we must turn back the clock by ten years. IP had just entered the world trade sanctions regime, but there were no riots in the streets. Boyle’s 1996 book spurred the establishment of a movement. The “invention” of the public domain laid a foundation for the “invention” of traditional knowledge. [She tells the shaman / rosy periwinkle story from the book.] Problems with the cultural environment led to problems in the real environment. The public domain saves lives. A2K makes the poor the wardens of knowledge.

Second, the metaphor is obscuring the role of the poor as cultivators of new knowledge. This is because of the IP/public domain binary. Poor people’s knowledge is understood as public domain, and is resisted for that reason. It’s also resisted because new rights for the poor are seen as further incursions into the public domain. But the benefits of an open-access commons go to the richest and the strongest. Concerns from efficiency alone obscure the disparate effects of the commons on the poor. We must stay attuned to the distributive effects, and that may lead to propertization of traditional knowledge. There are more than two sides to this coin.

Tradition is cultivated, not discovered. Nobody’s life is entirely traditional or entirely modern. Traditional knowledge is dynamic — it has existed for millenia, but it is not static. The capabilitty for knowledge creation by the poor is frequently overlooked. The poor must learn how to be IP owners — how to work in the market, how to satisfy demand, etc. This is what NGOs are trying to do with their traditional knowledge programs. Geographical indications are particularly well-suited to this goal.

Many questions are raised, but this is one more way in which the poor are learning the secrets of Madison Avenue. [Describes the Superflex artists from Denmark.]

While politically effective, reifying the public domain makes things seem stable that are really not binary, not fixed, not separate.

Comments by Terry Fisher:

Two reactions.

First. In the 17th and 18th centuries, Native Americans were depicted as noble savages. To leave the land in their hands would be to leave it a wilderness. This justified their displacement.

Until recently, the main line of criticism of this vision showed a combined devaluation of the Indians’ non-acquisitiveness with unjust conquest. But another criticism is that the view has the facts wrong. The land had been cultivated and modified by the Indians.

It was not the displacement of passive people — conservationists — by rapacious people, but the displacement of a civilization resting on one form of cultivation with another.

The same is true of Madhavi’s paper. Traditional knowledge is not the opposite of industrial knowledge, but a type of it.

Second. Recognition of Sunder’s insights suggests that we should look for a two-tiered system. A local system can be given teeth with IP law. A truly global IP system.

Comments by Arti Rai:

The big claim is that we should move beyond utilitiarianism in our IP scholarship. The smaller claim is that equating traditional knowledge with conservation suggests that it is static.

The big claim. Utilitiarianism comes into the sphere as a response to maximalism. But should we caricaturize law and economics? It doesn’t focus on wealth maximization. There’s a crude Posnerian style that focuses on Kaldor-Hicks efficiency, but there’s more to economics. It can take into account distributional considerations. One has to make interpersional comparisons of utility, and that’s controversial, but I’m willing to.

Shavell and Kaplow (“Posner 2.0″) adopt distributional concerns. But it’s hard not to just follow the money. We need a Human Development Index for IP.

Assertions of rights over traditional knowledge, some claim, is creating an anticommons. We can no longer live without incompletely theorized agreements, and we must look directly at social welfare.

The small claim. Traditional peoples are not conservators. This is clearly right. It has inventiveness, but it’s not written down. Unwritten foreign knowledge is not prior art. This is sort of like copyright’s fixation requirement. We should get rid of this discrimination, allowing unwritten foreign knowledge. This has not been terribly controversial.

This is similar to the general problems with collective knowledge. We have a tendency to want to centralize rights in a single person. This lowers transaction costs (see Coase). We need to modify our IP system to allow collective ownership, since much of this goes on in the West too.

Questions.

Mark Lemley: I’m nervous about your major premise — that the old traditional knowledge is deserving of IP protection. It requires going beyond the incentive theory of IP. Maybe it comes from cultural theory, but right now it comes from an absolutist vision of property. The traditional knowledge argument provides a wedge for the “value therefore property” maximalist argument.

Sunder: I grew up in the utilitiarian tradition. I appreciate that utilitarianism could limit IP. But it’s often not working,a nd the evidence is increasingly apparent. The Supreme Court opinions aren’t turning on economics. Economics doesn’t explain how we’re doing IP. The incentive theory is beginning to fall apart through OSS. We need to be honest about the fact that IP is growing, but is it all a mistake? Are there other ways of explaining it that might not be wrong? We have blinded ourselves to seeing IP as a cultural regulation. We need to see that.

Yochai Benkler: This is a direct assault on A2K and on the public domain. You say IP is good for poor people if it’s designed for their kind of innovation. IP extracts money from the people at a cost to their social welfare. Saying that “reclaiming” IP for geographical indications will help poor people more than weaving together the global IP rollback coalition is a very strong claim. It’s an empirical claim. What’s the justification?

Sunder: I’m not making an instrumentalist argument for recrafting the IP system to protect poor people because we like poor people. I’m just saying we need to think about the lack of reward for intellectual creations on welfare. There are real social effects to the existing system, nd we need to think about them. Is this an attack on A2K? No. I was just at an A2K conference with Jamie Love, and he didn’t take offense. We can’t be so afriad of new IP rights. That’s falling into the IP-versus-PD binary.

Molly van Houweling: What about the spleen?

Sunder: The lesson I get out of it is that the innovative traditional knowledge is not the passive spleen. That knowledge is frequently seen as the same as the spleen. It’s not about the spleen.

Jamie Boyle: There are two schools of thought about traditional knowledge in WIPO. In one, it’s about showing the narrowness and blindness of IP conceptions. In the other, A2K is a threat to WIPO, and traditional knowledge is a bone thrown to them. Once one dips one’s toe outside the academic, it becomes less clear. The way it’s being made may not live up to my our your intentions.

Sunder: The primary aim is to engage with A2K. It’s important to get the products of western intellectual creation to the world’s poor. How do we get them to be able to derive wealth from IP, just like the rest of the world? That’s my intervention. It’s pragmatic and timely. Cultural analysis is scary now, like deconstruction used to be.

Maggie Chon: She’s bringing stories to us from poor women who want the incentivizing effects of IP, however broadly defined. We need to listen to that. These poor women need protection from Chinese competiton. We need to be nuanced in our reactions.

Sunder: Thanks. This approach helps us understand fanfic and DJ Danger Mouse, too. We ned to realize that there’s more going on than our narrow lens has recognized.