A plea for disciplinary disloyalty in intellectual property studies

Graham Dutfield is Professor of International Governance at the University of Leeds and is an IP Osgoode Research Affiliate.

This is a plea for disciplinary disloyalty in intellectual property studies. I realise that sounds very bad – what’s good about disloyalty? But it’s not in the way I mean it. I am a geographer of sorts who was introduced to intellectual property not by a legal scholar but by ethnoecologist and indigenous rights activist Darrell Posey. And yet I have worked exclusively in law faculties since becoming a professional academic. I do ivory tower research, but my interests are also deeply practical. I have dealt over the years with diplomats, intergovernmental organisations, practitioners and activists. I have learned to write a bit like a lawyer, and I deeply respect the marvellous precision, erudition and balance one finds in the best legal scholarship. But I am definitely not one.Am I disadvantaged by this? From my admittedly partial perspective I think not. Indeed, my lack of attachment to any one academic discipline has served me well as a scholar committed to both blue skies research and policy work in intellectual property.

Above all, it has made me far more aware that to identify interesting research questions and seek the right answers, one may need to cast a very wide net spanning apparently disparate disciplines. In confining oneself to a single discipline, there is a danger of missing a wealth of outstanding intellectual property-relevant scholarship. This is particularly the case with topics that have been almost done to death by legal scholars. An excellent example is traditional knowledge. These days, law journals churn out articles on traditional knowledge as never before. Unfortunately, well written and beautifully footnoted as most of this literature is it tends just to reference the work of other legal scholars, missing almost everything else out. There are some honourable exceptions, but much of the writing is unoriginal, naive, and offers prescriptions that any anthropologist and many policymakers know will simply fail in the real world.

I spent much of last summer writing the second edition of my book Intellectual Property Rights and the Life Science Industries. I pored over issues of journals with names like History and Technology, Isis, Osiris, Current Anthropology, Social Studies of Science, New Genetics and Society, even one called Steroids. Articles were published in all of these journals that had something profound to say on intellectual property written by members of scholarly communities that rarely meet intellectual property lawyers. Attending my first history of science conference earlier this year to research for the book, it struck me that this particular thriving community has much to teach my law school intellectual property colleagues just as it has much to learn from them too. In my experience, there is nothing to fear and lots to gain by stepping out of our disciplinary comfort zones. For me at least it has been well worth straying far and wide.

Interdisciplinary research is an adventure, or at least it should be. It is also hard work. The prior art, to use patent terminology, is likely to be far more extensive than one expects and it is written in lots of different ‘languages’ you need to translate into your own. And it should be done in the right spirit and without cynicism. You must also dig deeper than the big names. Citing gurus outside your discipline is fine when there’s good reason for doing so, and it can of course make you look erudite. But including a Bruno Latour quote, say, for the sake of it and barely in context will not turn you into an intellectual and looks calculated.

I am not suggesting that my particular background and attitude automatically afford me a privileged vantage point or make me a better scholar than more conventionally trained specialists. That would be insufferably arrogant, and also wrong. There are large areas of intellectual property law I am quite ignorant of. I need legal specialists too. Nonetheless I still maintain that intellectual property no more ‘belongs’ to the discipline of law than it does to economics, philosophy, anthropology, history, business management, politics, or even geography, a department of which was where I did my doctorate – on intellectual property as it happens.

  1. [i]In confining oneself to a single discipline, there is a danger of missing a wealth of outstanding intellectual property-relevant scholarship. This is particularly the case with topics that have been almost done to death by legal scholars. [/i]

    As an “ologist” working in IP, I’m on board with your sentiments, especially the above quote, with a couple of minor qualifications. I think we must acknolwedge that completing the type of research that you advocate requires an array of skills: first and foremost fluency in law; then control of the language of economics; and finally the ability to speak in a cultural field or third discipline. That’s a high threshold to reach, and a reason why so little IP scholarship is interdisciplinary.

    I do however agree that you present the future. There isn’t a great deal of scholarship addressing the mayhem of intellectual property’s interaction with creative practices and third disciplines.

  2. Professor Dutfield raises profound issues on how we approach academic research. After many years of practice in the area of IP Law, I realize that a lot of IP theory does not always match my personal experience “in the field”. I also experience resistance as I am reaching out to academics in areas other than IP law in the context of my PhD Thesis which looks at the interaction between Copyright law and Consumer Protection Law and Policy. Academic research is too often approached in silos. In IP as in other areas of research, specialization is necessary, but so is a broader descriptive narrative type of work, and so is interdisciplinary work. We need various approaches to compensate for the inherent shortcomings of each research methodology and scope. They complement one another. One approach that is currently lacking in the field of IP is more empirical research.

  3. After 41 years as a legal practitioner, and 29 as an IP aficionado, I could not help to agree with Graham’s note on the fact that IP is not a straight legal subject. So is crime. When Barton Beebe does his fine job on the courts’ judicial trends about trademarks, he is not doing a straight legal analysis, however useful both for the legal practitioner to devise strategies and to the scholar to check on practical effects of legal doctrines. No unfaithfulness in that. As a lawyer I am moved by arguments, not facts or doctrines. My internal combustion acts by transforming geography, statistics and whatever is available into social change or resistance to change. As a legal academic, I strive to produce authority, not just knowledge. I quote Graham (that’s incidentally true) when making Brazilian federal courts to consider my arguments to deny patent extensions which my clients deem to be undue. Whatever Graham sayings filter into court decisions is not faithful or unfaithful IP. Law is just omnivorous.

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