an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I’m looking forward to welcoming a superb group here to Yale this weekend for our second annual “Innovation Law Beyond IP” conference. I’m particularly excited about the main theme of our gathering this year: bringing the state back in.
I’ve puzzled for many years about the reflexive pessimism about the state that prevails in the field of IP. The dominant justification for IP law, in fact, relies at its core on a particular view of the state. As Kenneth Arrow noted long ago, IP rights create necessary inefficiencies, and these make the state a plausible competitor to the market on efficiency grounds. Why, then, should we use IP rather than the state? Because, as one of the leading IP law casebooks tells us:
Intellectual property rights have the advantage of limiting the government’s role in allocating resources to a finite set of decentralized decisions: whether particular inventions are worthy of a fixed period of protection. The market then serves as the principal engine of progress. Decentralized consumers generate demand for products and competing decentralized sellers produce them. By contrast, most other incentive systems, especially large-scale research funding, require central planning on a mass scale. (Merges, Menell & Lemley, 18)
This image of the state casts a long shadow in the field. So long, in fact, that it reaches deep into the “beyond IP” literature. Larry Lessig, for example, argues that “[I]f the twentieth century taught us one lesson, it is the dominance of private over state ordering.” (Future of Ideas, 12). We should rebel against IP law in part, Lessig says, because we should “limit the government’s role in choosing the future of creativity.” (Id. at xvi).
Surprisingly, then, the pro-IP camp and their leading critics share an image of the state. This is the state as bureaucratic Leviathan---inertial, inflexible, and perilously corrupt and corruptible. We should be skeptical about this image, I suggest in a recent commentary, because if we dig a little deeper, we see that both sides need---and indeed rely upon---the state at critical moments. And not just on any state, but on a capable, responsible, and empowered state. The pro-IP camp needs such a state to create, tailor, and administer plausibly efficient IP law. The beyond IP camp needs the state too, for example to create the infrastructure needed to facilitate commons-based production (see David Grewal’s draft for the Beyond IP conference for more on this).
If we need a capable and responsive a state, shouldn’t we be able to theorize one? This is not to say we should assume such a state, or fail to criticize states when they fall short, as they often do. But is the modern state always inertial, ineffective, corrupt? Are there not real moments of democratic responsiveness---perhaps, the SOPA/PIPA fights, and the recent FCC net neutrality rule? Are there not examples of the state playing a critical role in innovation, including by investing directly in research that led to, e.g., the Internet, biotech, and nanotechnology? Fred Block will address this question in his keynote talk; Marianna Mazzucato’s recent book, The Entrepreneurial State, is another important reference here.
My own contribution to the conference will be drawn from a case study about an important scientific institution that depends critically not just on the state, but on many states---the World Health Organization’s “Global Influenza Surveillance and Response System.” This Flu Network gathers data and flu virus samples, tracks and predicts pandemic outbreaks, chooses strains that go into the flu vaccine each year, and helps optimize vaccine seed strains for manufacture. It also plays a critical role in helping regulators test these vaccines.
This network has succeeded in producing high-quality and sophisticated science over many decades, all without any significant recourse to IP law. So what has made it work? In the paper, I argue that an alternative information production system is at work here, the system of “open science.” States play a critical role in this system, but importantly, they does not operate alone, nor as centralized Leviathans. Rather, they rely in making allocative decisions on scientific expertise and judgment, as well as scientific reputation, all of which are produced in decentralized fashion, as scientists share their findings and data and publications with one another.
The first lesson of the study, I will show, is that “intellectual production without IP” can work well even in areas that are capital intensive, and that such systems can be as plausibly efficient as the market-exclusionary version, including in allocative terms. The second key lesson serves as a corrective to the emerging “beyond IP” literature. That literature has mapped many domains of creative practice that function without traditional recourse to IP (from magic to comedy to Wikipedia, for example). But it has largely ascribed creation in these contexts to norms, intrinsic motivations, and new technology. A close consideration of the Flu Network suggests that where the stakes are high, we should in fact expect intellectual production without IP to require recourse not just to these elements, but also to institutions and law. I predict the forms of law that will be important, and describe when institutions are likely needed to support intellectual production without IP. This will allow us to return to systems we have studied before (like Wikipedia), to review the role that institutions and law play in these settings. Equally importantly, it will give us new conceptual tools – like that of “common IP” – that will advance our ability to conceptually map, and support, creation beyond (conventional) IP.
Amy Kapczynski is Professor of Law at Yale Law School and faculty director of the Global Health Justice Partnership. She can be reached at amy.kapczynski at yale.edu.