Intellectual Property and Social Justice: An Invitation

Lea Shaver*

As someone who cares about social justice, what are your thoughts on intellectual property? You might think this is one area in which you can afford not to have an opinion. But I want to convince you otherwise. In fact, intellectual property policy lies at the heart of vital issues such as access to health care, democratic culture, economic growth and jobs, and the cost of almost everything consumers buy.

Like many of us, I became a lawyer because I wanted to make an impact. The issues foremost in my mind when I entered law school were global poverty and international development. I wanted to learn about legal institutions to better understand how to create opportunities for the world’s most disadvantaged. I thought that “my issues” were human rights, particularly socioeconomic rights such as the right to education, the right to housing, and the right to health care. I didn’t think I was interested in intellectual property.

In my third year of law school, however, I had the good luck to take part in a new seminar that Jack Balkin and Yochai Benkler were offering at Yale Law School. Through the lens of “Access to Knowledge,” we explored the ways that intellectual property impacts development, health care, and education. I realized that intellectual property was central to the issues that I cared about. Today, my scholarship focuses precisely on the relationship between intellectual property, economic development, and human rights. And I see myself as part of a broader movement, including scholars and activists, for access to knowledge.

What do I mean by the term: access to knowledge?

Knowledge can come in many forms, including: inventions, ideas, and information. In all its forms, knowledge is not merely of intellectual interest. It is also useful in very practical ways. Knowledge can make people healthier, such as when new scientific data drives a doctor to recommend a different treatment, or when new medicines are invented. Knowledge can provide new opportunities, such as when communications technology helps a small businessperson sell their goods for a fairer price, or a textbook or website helps a student acquire new skills. Even forms of knowledge that are primarily designed for entertainment, such as novels and movies, are part of a shared culture that connects us as a society. This utility makes knowledge highly valuable, both in simple monetary and non-monetary terms.

To a great extent, everything that makes our lives better depends on innovation, ideas, and information—innovation that, quite often, the law recognizes as the intellectual property of a particular individual or corporation. This is where the question of access becomes very important. When the law designates an idea as intellectual property, it gives one owner the right to exclude everyone else from having access to it: access to use it, access to improve upon it, and access to sell goods based on that idea. This legal right to exclude enables the owner to charge for access to the innovation. Often, the price to access will be very expensive because the right holder can also exclude potential competition.

Accordingly, the access to knowledge perspective asks a question that is long overdue in intellectual property law and policy: as innovation happens, who is able to benefit from it and who is not? How can new knowledge be most effectively used to advance social welfare? What is the role of the law in determining who is in the door, and who is left outside? Might all those barriers to access actually have a negative impact on economic growth and future innovation?

Public discussion on intellectual property so often assumes that we just have to get the incentives right, and the market will produce all the innovation we need. But there is a blind spot: What about the next step? Innovation should not be thought of as merely coming up with new ideas. The spread and use of these new ideas, the diffusion, is what gives the innovation its value. Ideally, new knowledge should be available and affordable, so that it quickly becomes widely used. This is obviously important for social welfare, when we are talking about ideas that can make us healthier, better educated, or more secure. But it is also crucial to economic growth. If businesses are slow to get access to new technologies and ideas, we are limiting their productive potential.

Therefore, from the perspective of the public good, diffusion is essential. It is where innovation achieves its social impact by reaching as many people as possible, particularly the poor, who always seem to be the last to benefit. The rapid and wide spread of new ideas, inventions, and information also has a very important impact on economic growth.

From the perspective of the person holding an intellectual property right, diffusion may or may not be a priority. For some innovations, pursuing rapid diffusion, offering the new product at an affordable price, and seeking a large market makes perfect business sense. For others, the right holder may wish to restrict diffusion, charging a premium to a smaller pool of customers. In certain sectors, the right holder may realize that they can charge exorbitant fees and count on insurers or taxpayers to foot the bill. When this happens, intellectual property protection is in tension with the public good.

Given this tension, the question becomes whether our intellectual property policy is striking the right balance between business incentives and broader access. There are powerful constituencies of public interest advocates and ordinary citizens who care deeply about education, health care, consumer rights, rising costs, and whether the government is paying too much for the things that it purchases. But most of them do not yet realize how intellectual property is relevant to “their issues.” There is an additional hurdle to clear, as well, because many people think that intellectual property is very complicated, or very technical. They are not sure they even have a place in this debate. But it desperately needs their voices.

We need to educate a new generation of lawyers who can help demystify intellectual property’s role in impacting the things that so many of us care about, and educate public interest advocates about how this area of the law affects “their issues” too.

* Lea Shaver is an Associate Professor at Hofstra Law School, where she teaches intellectual property and transnational law. Previously, Shaver served as an Associate Research Scholar and Lecturer in Law at Yale Law School. Shaver’s principal research interests include international intellectual property, law and technology, and human rights. Her work has been published in the Wisconsin Law Review, the Wisconsin International Law Journal and the Washington University Global Legal Studies Review, among other academic journals. She is the editor of Access to Knowledge in Brazil: New Research on Intellectual Property, Innovation and Development and the co-editor of Access to Knowledge in Egypt: New Research on Intellectual Property, Innovation and Development. Both books are published by Bloomsbury Academic on a Creative Commons license and are available for full text download at http://ssrn.com/author=880999. The present work is also made available to a public under the Creative Commons Attribution 3.0 License. You are free to copy, download, share, and adapt this work, provided that you give credit to the author and to the New York Law School Law Review.

 

 

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