Amy Kapczynski on the Future of "Beyond IP" Scholarship

I was thrilled to participate this past Sunday in the Innovation Law Beyond IP Conference at Yale Law School hosted by the Information Society Project (ISP). The list of attendees included Mark Lemley, Amy Kapczynski, Yochai Benkler, Lisa Larrimore Ouellette, John Golden, Hannah Wiseman, Rebecca Eisenberg, Michael Abramowicz, Sean Pager, Jessica Silbey, Pam Samuelson, Barton Beebe, Ian Ayres, Brett Frischmann, Mark McKenna, Bryan Choi, Frank Pasquale, Tal Zarsky, Julie Cohen, Margot Kaminski, Michael Burstein, Bhaven Sampat, Brian Wright, Jonathan Masur, Dan Burk, Liza Vertinsky, Roger Ford, Sean O’Connor, Jim Bessen, Talha Syed, Arti Rai, Orly Lobel, Mario Biagioli, Rochelle Dreyfuss, Ann Bartow, Kiel Brennan-Marquez, Nicholson Price, David Grewal, and the ISP's own Jack Balkin.

The plenary session was packed, despite being held at 8:30 in the morning (which was of course 5:30 AM for West Coast participants.) Unfortunately, the best summary I can give of Kapczynski's, Lemley's, and Benkler's respective remarks is: you had to be there. Fortunately, for those who missed it, the video will be available shortly on the conference website. For now, I want to highlight some of Kapczynski's fascinating observations on the evolving field of "IP law" – which, her comments suggest, may have to be re-named.

According to Kapcynski, IP law has undergone a paradigm shift of late, as scholars begin to turn away from IP as the exclusive form of incentive to innovate, and to take note of the spaces in which innovation occurs absent IP and absent traditional incentives. Kapczynski observes increased attention in IP scholarship (let's just call it Beyond IP scholarship for now) to several themes, including the importance of openness and Benkler's "commons-based peer production"; the multiplicity of motivations on the part of innovators; and the possibility for norms-based IP systems similar to what Robert Ellickson has argued can emerge in real property contexts. Kapczynski suggested that these themes are beginning to appear in analyses of how innovation proceeds in mainstream settings, not just in "niche" settings like roller derby or among open source advocates.

For legal scholars looking to do research in this area, Kapczynski provided a useful list of the laws that might govern in the spaces Beyond IP. Possibilities she mentioned include:

• various modes of government procurement (e.g. contracts, financial prizes)
• tax law 
• education law
• human capital law
• regulatory law (NHSTA, DOE, FDA, EPA, SEC)
• First Amendment law
• common property
• contracts

Kapczynski also discussed the importance of attention to norms beyond efficiency, such as human rights and distributive justice. Non-efficiency norms have been the focus of much of Kapczynski's work in promoting Access to Knowledge and the ISP's own A2K program. But I suspect that, even if scholars move Beyond IP, non-efficiency norms may take time to emerge. This is especially likely to be true in patent law scholarship, where, as Zahr Said observed in her recent review of IP scholarship, efficiency and commercial incentives have tended to dominate. Indeed, according to Robert Merges' influential account, efficiency should be deemed a mid-level principle of IP law. For Merges and others, values beyond efficiency are typically seen as justifying more, not less property rights. Kapczynski seems, however, to be suggesting that a broader union of IP law, Beyond IP law, and A2K should take place.

At any rate, I thoroughly enjoyed Kapczynski's and the other plenary speakers' remarks. Like the rest of the conference, they left me with a sense of excitement, waiting to see where the discussion leads and ready to read more.