Academic journal article Law and Contemporary Problems

Intellectual Property's Leviathan

Academic journal article Law and Contemporary Problems

Intellectual Property's Leviathan

Article excerpt

Neoliberalism is a complex, multifaceted concept. As such, it offers many possible points of entry into my primary field of study, that of intellectual property (IP) law. We might begin by investigating tensions between IP law and a purely economic conception of neoliberalism, for example. (1) Or we might consider whether or how IP law might be "insulated from democratic governance" while also being rapidly assembled. (2) In these few pages, I want to focus instead on a different line of inquiry, one that reveals the powerful grip that one particular neoliberal conception has on our contemporary imaginary: the neoliberal conception of the state. Today, both those who defend robust private IP law and their most prominent critics, I will show, typically describe the state in its first instance as inertial, heavy, bureaucratic, ill-informed, and perilously corruptible and corrupt.

This depiction of the state as a neoliberal Leviathan has become commonsensical. I will not here attempt to defend an alternative account of the modern state, but I do want to suggest grounds to suspect that this neoliberal image does not serve us well. For example, as I will show, neither side in the current debates over IP sustains an image of the state as irredeemably neoliberal because a capable, flexible, and responsive state is essential to each side's competing vision of the good life. Insofar as our theories require a decent state, it seems important to be able to describe one and to offer an account of the conditions that might sustain it. Moreover, there is some evidence in the domain of information policy that the modern state can be capable and efficacious, as well as open to democratic claims-making.

In the domain of IP scholarship, and undoubtedly also beyond, we need a serious, curious engagement with the state of the modern state. That engagement ought not ignore evidence that the modern state is vulnerable to ineptitude, and can be commandeered to achieve undemocratic aims. It should insist, instead, that we better understand the conditions in which this is more or less likely to be true. Ultimately, the field of IP law needs a postneoliberal imaginary of the state, not because we are sure that we can bring such a state about but because we cannot bring it about if we assume it away.

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The dominant contemporary justification for IP law turns critically on a particular conception of the modern state--a conception that is easily recognizable as neoliberal. Today, IP law is primarily analyzed and justified in welfarist terms, and more particularly through the lens of economics, with efficiency posited as the primary goal. (3) This account begins by characterizing information as typically expensive to produce but cheap to reproduce. Absent property rights, then, it is said to be difficult to recoup investments in the creation of information in competitive markets. For example, without patents, pharmaceutical companies that spent millions on research and development would be immediately undercut by generic competitors. Without copyrights, Hollywood studios would ostensibly face the same problem. When more finely tuned, this account recognizes that, even in competitive markets, companies may have some ways to recoup their investments in information in the absence of IP rights. For example, innovative companies may enjoy critical lead time over copiers and, in some industries, secrecy is still possible. But such alternative means are described as both diminishing in our networked digital age and as insufficient to generate the degree of investment in information that is socially desirable. Absent a state-created right to exclude, the traditional account suggests that markets will invest too little in information. IP laws thus are intended to provide incentives to innovate by allowing those who create informational goods to recoup their investment in the marketplace.

This describes one half of the so-called "public-goods problem" of information: In the absence of state-backed property rights, it is difficult for someone who has invested in information production to exclude others from its benefits. …

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