I will be traveling to Baltimore for the Annual Law and Society conference in a couple of hours. Tomorrow, I'll be participating in an Author-Meets-Reader panel to discuss Susan Scafidi's book Who Own's Culture. It's an insightful and fun book to read about the underprotection of certain forms of cultural products (fashion) and the overprotection of others (chemical compounds).
There is so much to admire about Susan Scafidi, especially from where I sit: which is as a newish female legal academic from an interdisciplinary background, who writes about “low brow” things – I write about film, she writes about fashion. Successfully deconstructing the nomenclature of “low brow” and “high brow” is part of Susan’s successful project. She points to why cultural products, like fashion, cuisine, quilting are typically not protected in traditional intellectual property regimes, and how – no surprise here for the feminists in the room – these are also typically female-oriented endeavors. The implication here is that there is a real, material connection between what U.S. law protects and the ideology of gender.
Another thing I like about Scafidi’s book (and Scafidi’s blog, and her scholarship generally) is how unapologetic she is when it comes to discussing things like fashion and food in the context of law and society. Not that I think one should be apologetic – especially in a forum like the Law and Society association. But don’t be fooled – there are plenty of law faculties around the country that would and do turn up their noses at articles written about Louis Vuitton luggage or Lily Pulitzer clothing even if the subject is intellectual property law. Scafidi has – ironically enough – taken “low brow” issues in a legal academic setting and legitimated them with her fine scholarship and depth of knowledge about intellectual property regimes – much as she says the legal system should do with certain cultural products presently undervalued or unprotected by intellectual property law.
In these ways, Susan Scafidi is admirably bold. She is also bold in that she is advocating more IP protection in a legal academic world populated by (or at least where some of the loudest talkers are) those who think there is too much IP protection – that the trend in legislative initiatives over the past 25 years to extend and enlarge certain IP protection is deeply troubling from the point of view of protecting the commons. Some will criticize Scafidi for her association of value and legal right: she suggests that if we value certain cultural products, we should protect them through the law. Her critics will say “don’t create more IP rights but decrease the rights available to others.” This avenue, they think, will free up more creative expression, encourage more inventions for everyone’s benefit. They’ll point out that people don’t necessarily need the incentive of IP protection to create, invent or market goods. Society benefits all the time from unprotected acts of creativity and genius.
There are lots of good arguments against this predominantly economic model of intellectual property (some of which Scafidi mentions, some of which she doesn’t). One of which is that whether or not a source community stops engaging in its valuable creative activity in the absence of the extension of intellectual property rights, whether the law grants it legal protection says something about our culture’s valuation of and respect for that creative activity and that source community. This is an argument about the symbolic function of law, one which Scafidi makes, especially in her concluding pages, but which I think could be made stronger. Insofar as the law serves a modeling function (it being constitutive of social norms as well as reflective of them), protecting the cultural products of source communities can help foster tolerance for and disseminate honest information about those communities and their contributions to society.