Intellectual Property and Cultural Protection: Regulating Creativity in an Interconnected World

Course Number: 533Z

Description: Three different paradigms for regulating creativity have competed in recent decades: (1) conventional IP rights premised on economic incentives; (2) collaborative licensing regimes based on "open source" principles; and (3) ownership claims grounded in natural/moral rights. Intellectual property rights have traditionally relied on a utilitarian calculus that grants limited exclusivity as an incentive to induce innovation. The assumption that exclusive rights are needed to encourage creativity has been challenged in recent years by "open source" licensing regimes. From their early roots in the free software movement, open source principles have been applied to everything from biotechnology to beer. Open source proponents often criticize proprietary systems for regulating creativity as inefficient, undemocratic, or even immoral. While open source models often view IP rights as overly protective and counterproductive, IP law have also been criticized for being underprotective from a natural rights perspective. Natural rights paradigms challenge the limitations on IP rights under an incentive model because they view intellectual property as an inalienable moral right, independent of its economic significance. Resisting the globalized comodification of culture, natural rights proponents often insist that the right to control creativity belongs to particular peoples in particular places and inheres in subject matter ranging from the traditional knowledge of rainforest shamans to wine labels used by champagne vintners in France. Readings in this seminar will explore arguments for and against each of these positions as we seek to understand the interface between law and culture, property and creativity.