I tend to approach IP law primarily through a law-and-economics lens, but I enjoy learning about how scholars with different methodological toolkits tackle the same subject matter—especially when their work is clear and accessible. I was thus delighted to see a draft chapter by Margaret Chon, IP and Critical Methods, for the forthcoming Handbook on Intellectual Property Research (edited by Irene Calboli and Lillà Montagnani). Chon provides a concise review of critical legal theory and its application to IP law.
According to Chon, critical theory includes a critique of liberal legal theory as based on the fallacy that legal institutions fairly reflect constituents' interests (as reflected in the marketplace or ballot box). Instead, the interests of privileged or empowered social groups are over-represented, and institutions contribute to these inequalities to the extent that enduring change requires reimagining these institutions themselves. Of course, as she notes, "critical theory would not exist without some belief (however thin) that law and legal systems contain some of the tools necessary for structural transformation."
Chon argues that one need not be a self-identified Crit to engage in critical methodology, and that many IP scholars have stepped closer to critical method by moving from doctrinal to structural analysis, and by "perform[ing] this structural analysis with attention to power disparities." And she gives a number of examples of the influence of critical theory across different areas of IP.
For example, Peter Drahos and John Braithwaite's Information Feudalism: Who Owns the Knowledge Economy? focuses on reducing the asymmetrical power between corporations and consumers. Amy Kapczynski's The Access to Knowledge Mobilization and the New Politics of Intellectual Property proposes a radical revisioning of social systems. Careful attention to power dynamics in copyright institutions is evident in Debora Halbert's The State of Copyright: The Complex Relationships of Cultural Creation in a Globalized World and Jessica Litman's Digital Copyright. For an examination of "the historical uses of racialized trademarks to consolidate a white national identity in the US in the late 19th century," Chon recommends Rosemary Coombe's The Cultural Life of Intellectual Properties: Authorship, Appropriation, and the Law. And she points to Keith Aoki's work on plant genetic resources and Boatema Boateng's work on traditional knowledge as examples outside the "big three" areas of IP.
For those looking for additional reading on innovation and inequality, the online readings from Barton Beebe and Jeanne Fromer's NYU colloquium are a good place to start. And for Stanford Law students, you can sign up for my spring reading group!
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