Madhavi Sunder

The Romance of the Public Domain

Since Hardin, law and economics scholars have launched a crusade to expose the evil of the commons - the evil, that is, of not propertizing. Progressive legal scholars have responded in kind, exposing the perils of propertization. With the rise of the Information Age, the flashpoint debates about property have moved from land to information. The public domain is now the cause celebre among progressive intellectual property and cyber-law scholars, who extol the public domain as necessary for sustaining innovation. But scholars obscure the distributional consequences of the commons. They presume a landscape where every person can reap the riches found in the commons. This is the romance of the commons - the belief that because a resource is open to all by force of law, it will indeed be equally exploited by all. But in practice, differing circumstances - including knowledge, wealth, power, access, and ability - render some better able than others to exploit a commons. We examine this romance through the lens of the global intellectual property regime in genetic resources and traditional knowledge. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) transformed a global public domain in information by propertizing the information resources of the West - from entertainment to technological advances - but leaving in the commons the information resources of the rest of the world, such as genetic resources and traditional knowledge. Just as the trope of the romantic author has served to bolster the property rights claims of the powerful, so too does the romance of the public domain. Resourcefully, the romantic public domain trope steps in exactly where the romantic author falters. Where genius cannot justify the property claims of corporations (because the knowledge pre-exists individual claims of authorship), the public domain can. We review real-world strategies for resolving the romance of the commons. Just as recognition of the tragedy of the commons is the central justification for private property, recognizing the romance of the commons may justify forms of property uncommon in Western legal traditions.

The Invention of Traditional Knowledge

James Boyles cultural environmentalism metaphor laid the foundation for the recognition and protection of traditional knowledge and natural resources found in the developing world. The theory underlying the Convention on Biological Diversity (CBD) was that while traditional communities may not have invented knowledge about the medicinal properties of local plants, they ought to be rewarded nonetheless for their preservation and conservation of biodiversity through limited rights to control and compensation. Taking a cue implicitly from the environmental justice movement, which demonstrated the disparate effects of environmental harms on disadvantaged minorities, the cultural environmental movement illustrated how Third World peoples are disproportionately disadvantaged by intellectual property law, which historically has not recognized their cultural contributions as protectable works of authorship. But while this paper credits cultural environmentalism with offering theoretical legitimacy for traditional knowledge protection, it further considers whether the metaphor may also disable a more dynamic and modern view of traditional knowledge. In fact, traditional knowledge is far from static and archaic and much more dynamic than the environmentalism metaphor acknowledges. The makers of Mysore silk sarees in India respond to new market, technological, and cultural needs, for example, offering waterproof sarees in hi-tech designs to todays global consumers. I consider how the environmentalism metaphor may impede an understanding of poor peoples knowledge (a term I prefer to traditional knowledge) as creative works of authorship deserving of ex ante intellectual property rights rather than just as rights afforded ex post to reward preservation of ancient traditions or to correct longstanding cultural and distributive injustice.

An Issue of Life or Death

Not too long ago, an HIV-positive diagnosis was tantamount to a death sentence — for people in the East and the West, in the South and the North. The drug companies that perfected the antiretroviral therapies invested princely sums to find these miracle cures. To justify their investment, they rely on the promise of a patent — the twenty-year exclusive right to make, use, and sell an invention that is novel, non-obvious, and useful. The patent allows the drug company to charge high sums for the medicine, and thereby recoup its enormous investments in scientists and drug trials, while also turning a profit for shareholders and investing in research toward future breakthrough drugs. Thus patents have saved countless lives. But this structure has its limits. Indeed, the evidence is mounting that in crucial ways patents fail to promote the health of people in the developing world, and in some cases in the developed world as well.