Nicole Aylwin is a Ph.D. Candidate in the Communication and Culture Graduate Programme at York University.

“Cultural policies, in brief, are those that regulate what has been called the marketplace of ideas”

– Paul DiMaggio

It may seem questionable to preface a post on intellectual property with a quotation that addresses cultural policy rather than property. However, what I would like to suggest is that one of the problems in current debates over intellectual property has been precisely too much talk about property and not enough talk about policy. 

Some weeks ago, Graham Dutfield encouraged the readers of this blog to consider a more interdisciplinary approach to the questions and debates surrounding intellectual property (January 5, 2009), and in the past few years slowly but surely an interdisciplinary approach to intellectual property has indeed been developing. Anthropologists, communications scholars, political economists and even geographers are now considering questions of intellectual property and its relationship to culture, technology, the economy and the environment. Yet despite this growing interdisciplinarity, property theory and questions of ownership continue to dominate intellectual property discussions; the focus continues to remain on who owns what, who stole what and who controls what.

Given the long and complicated historical relationship that the “marketplace of ideas” has with the conception of individual authorship, it appears only natural to extend questions of property and ownership into our current intellectual property debates. Under the conditions of neoliberalism this ‘natural’ relationship between ownership and intellectual property has only increased. Neoliberalism has increased the value of symbolic goods (thus increasing the profit to be made in the “marketplace of ideas”), and cultural goods are now routinely articulated as commodities making property ownership the appropriate frame for any intellectual property discussion. 

Yet it has always been the case, both historically and in the present moment, that the “marketplace of ideas” is, in fact, a place where culture and cultural practices are produced and lived. How these cultural practices are supported, fostered and protected is a not a mere matter of property, but an issue of cultural policy. Intellectual property should be considered not only as a branch of trade and economic policy, but as an important branch of cultural policy that has the ability to “influence barriers to the entry and chances of survival of ideas, values, styles and genres.” (DiMaggio) 

Rethinking intellectual property as an issue of cultural policy rather than clinging to debates over property and ownership can give new life to intellectual property rights. For example, community coffee cooperatives in Columbia have begun to protect traditional production practices and provide economic stability for their communities by using geographical indications (one form of intellectual property) to capitalize on popular North American niche markets whose customers are willing to pay a higher price for coffee that promotes community development and socially responsible labour practices. Arguably, this is a creative use of geographical indications that works to support the social and cultural practices of a community. It helps provide a sustainable livelihood, it promotes and protects traditional coffee growing practices in the region, and it provides an opportunity for communities to govern their own economic and cultural practices. In other words, it’s good cultural policy.

Intellectual property was not always so detached from progressive cultural policy. At one time intellectual property rights, such as copyright, were committed to balancing the rights of artists, owners, and users of culture rather than focused on sorting out ownership and property claims.  This can once again be the case for our larger intellectual property system, but the frame of the debate needs to be altered to attend to the social functions of culture and cultural goods-not just their ownership and property value.

To read more on the importance of cultural policy and it’s relationship to intellectual property, see Paul DiMaggio’s article “Cultural Policy Studies: What They are and Why We Need Them.” in Journal of Arts Management and Law, 13:1 (1983: Spring) and Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual property and How it Threatens Creativity. (New York: New York University Press, 2001).  If you are interested in considering other ways that intellectual property can act as a vehicle for sustaining social and cultural livelihoods please see my co-authored piece with Rosemary J. Coombe, “Intellectual Property, Cultural Heritage and Rights-Based Development: Geographical Indications as Vehicles for Sustainable Livelihoods” forthcoming in, Law in Transition: Human Rights, Development and Restorative Justice, Peer Zumbansen & Ruth Buchanan, eds., Hart Publishing.

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