• Author: Sunder, Madhavi
• Position: Intellectual property licensees in the developing world

INTRODUCTION I. IDENTITY POLITICS A. From Redistribution to Recognition B. The Property Turn in Identity Politics C. The Identity Turn in Intellectual Property II. INTERNET PROTOCOL A. The Technology of Semiotic Democracy B. Techonomics and Technocracy III. INTELLECTUAL PROPERTY A. The Failure of Utilitarianism as a Comprehensive Theory of Intellectual Property B. Case Studies 1. MGM v. Grokster 2. New from the Creative Commons: The developing nations license 3. Access to essential medicines 4. Geographical indications 5. Fan fiction, mash-ups, machinima 6. A2K: Access to knowledge IV. TOWARD A CULTURAL ANALYSIS OF INTELLECTUAL PROPERTY A. Development as Freedom B. Intellectual Property as Social Relations C. The New Enlightenment D. Foundations and Applications of a Cultural Theory E. IP Originalists' Demurral CONCLUSION INTRODUCTION

A quarter century ago, Margaret Jane Radin interrupted the hegemonic law and economies discourse on property with a theory of personhood. (1) Earlier, the New Jersey Supreme Court had declared in the historic ease of State v. Shack that "[p]roperty rights serve human values." (2) From these our modern social relations" theory of property was born. (3) Property rights today balance myriad values, from efficiency to personhood, health, dignity, liberty, and distributive justice.

Now, the pundits declare that "[i]ntellectual property has come of age...." (4) But is intellectual property mature enough to face the world? Unlike its cousins property law and the First Amendment, which bear the weight of values such as autonomy, culture, equality, and democracy, in the United States intellectual property is understood almost exclusively as being about incentives. (5) Its theory is utilitarian, but with the maximand simply creative output. Intellectual property utilitarianism does not ask who makes the goods or whether the goods are fairly distributed to all who need them. To put it bluntly, there are no "giant-sized" (6) intellectual property theories capable of accommodating the full range (7) of human values implicit in intellectual production. (8) But there should be.

Intellectual property has grown, (9) perhaps exponentially, but its march into all comers of our lives and to the most destitute comers of the world has paradoxically exposed the fragility of its economic foundations while amplifying its social and cultural effects. It is increasingly evident that utilitarianism fails as a comprehensive theory of intellectual property, either descriptively or prescriptively. Scholars in both economics and law are unable to make economic sense of new rights. (10) Meanwhile, rapid-fire technological advances and new forms of creative output, from the advent of open source collaborative networks (11) to garage bands, remix culture, and the World Wide Web itself, (12) undermine utilitarian intellectual property law's very premise: that intellectual property rights are necessary to incentivize creation. (13)

At the same time, the legal regime of intellectual property has insinuated itself more deeply into our lives and more deeply into the framework of international law, affecting everything from the recreational home user's ability to share music, to the farmer's ability to replant seed, to the production and distribution of life-saving drugs. Indeed, with full compliance to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement now required (as of January 1, 2005) in all but the world's very least developed countries, (14) intellectual property law becomes literally a question of life or death. (15)

Despite these real world changes, intellectual property scholars increasingly explain their field through the lens of economics. Giving evidence to Amartya Sen's observation that "[t]heories have lives of their own, quite defiantly of the phenomenal world that can be actually observed," (16) legal scholars continue to understand intellectual property as solely a tool to solve an economic "public goods" problem: nonrivalrous and nonexcludable goods such as music and scientific knowledge will be too easy to copy and share--thus wiping out any incentive to create them in the first place--without a monopoly right in the ideas for a limited period of time. (17)

In contrast, this Article maps a network of cultural, technological, and legal regimes that are making and remaking intellectual property law in the new century. I offer "[IP.sup.3]" as a metonym. (18) The twentieth century closed with the rise of three phenomena: identity politics, the Internet Protocol, and intellectual property rights. I suggest that the convergence of these "IPs"--call it [IP.sup.3]--begins to explain the growth of intellectual property rights at the very moment that the traditional justifications for intellectual property have less explanatory force.

Part I foregrounds intellectual property's convergence with identity politics. While identity politics remains problematic, (19) we cannot understand intellectual property today without recognizing the identity struggles embedded within it. Intellectual property's convergence with identity politics reveals links between cultural representation and development, which traditional economic analyses of intellectual property overlook. Indeed, as social and economic power in the new millennium promises to derive from knowledge (what the United Nations calls a "Knowledge Society" (20)), the implications of intellectual property laws today are profound. The "Internet Protocol" in Part II is shorthand for digital architecture, which empowers democratic cultural participation and ushers in "a semiotic democracy" in which all individuals can "rip, mix, and burn" culture. But when technology combines with the economic rationale for intellectual property (in a mash-up I call "techonomics"), scholars limit law's role to retaining the old balance between economic incentives and access, eliding the new technology's democratic potential.

The theory is behind the practice, as my case studies in Part III reveal. On the Internet, Netizens abandon the "Information Age"--in which consumers passively receive culture protected by intellectual property--to embrace the "Participation Age" (21) of remix culture, blogs, podcasts, wikis, and peer-to-peer filesharing. (22) This new generation views intellectual properties as the raw materials for its own creative acts, blurring the lines that have long separated producers from consumers: witness a disc-jockey named "Dangermouse" who perfects a digital "mash-up" of the Beatles' White Album and hip-hop artist Jay-Z's Black Album to create the award-winning "'Grey Album"; (23) witness girl fans of Harry Potter who post stories at www.fanfiction.net to retell life at Hogwarts from Hermione's perspective; (24) witness video game players who become "machinima" auteurs, scripting and recording play in virtual worlds. (25) In case after case, from MGM v. Grokster, (26) to new licenses from Creative Commons for developing nations and cultural heritage, to efforts to deliver medicines to the world's poor, to demands for "Geographical Indications" for sarees and other crafts of the developing world, and to the nascent global movement for "Access to Knowledge," we see that traditional law and economics analysis fails to capture fully the struggles at the heart of local and global intellectual property law conflicts.

On the ground, underground, and in the ether, intellectual property is spurring what "could be the first new social movement of the century." (27) Historically disempowered individuals are appropriating intellectual property, using it as a tool for recognition and redistribution, development, and human rights. Call this the ripping, mixing, and burning of law. In the final Part, I begin to craft a cultural analysis of intellectual property that would help to better explain and guide current intellectual property conflicts. I draw upon Amartya Sen's and Martha Nussbaum's capabilities approach to human development, the social relations approach to property, and what I call a "New Enlightenment" analysis of culture, in which the core values of Enlightenment--reason, democracy, freedom of expression, and the call, in Kant's words, to "think for [one]self" (28)--are extended to the cultural sphere. (29) My reinterpretation of intellectual property applies to suburban American fan fiction authors and rural Indian weavers alike: all seek greater capacity for accessing and participating in crafting new knowledge of the world. In turn, these cultural capabilities structure our social relations. But let me be plain: I do not seek to replace an economic lens with a cultural one. Rather, I argue that either lens alone provides an incomplete picture and urge intellectual property scholars to begin to integrate the two. (30) We must recognize that the interrelationship between culture and economics goes well beyond incentives. I illustrate with an example currently in the news.

The international circuit traveled by a song composed in a squalid Johannesburg hostel by a black migrant worker in 1939 links north and south, past and present, copyrights and patents, songs and medicines, intellectual property and social relations. Solomon Linda composed the song "Mbube" ("lion" in Zulu), drawing from his childhood protecting cattle from lions in the South African hinterlands. (31) The song was sung a cappella in Zulu tradition, but Linda mixed the syncopation of contemporaneous American music with a haunting falsetto overlay. (32) The song became what was probably Africa's first pop hit. (33) It would go on to be recorded more than 150 times, generating millions of dollars, with its lyrics rewritten as "The Lion Sleeps Tonight" and incorporated into Disney's immensely profitable movie, The Lion King. The "most famous melody ever to emerge from Africa" (34) added to the wealth of many, especially in the United States, but not its composer...