By Gordon Hull
In “Intellectual Property’s Leviathan,” Amy Kapczynski argues that both advocates of strong IP protection, and critics from the creative-commons (CC) side tend to view the state in the same way: “both those who defend robust private IP law and their most prominent critics … typically describe the state in its first instance as inertial, heavy, bureaucratic, ill-informed, and perilously corruptible and corrupt” (131-2). On the pro-IP side, neoliberal economic doctrine (she cites Hayek) view the state’s role as establishing markets and getting out of the way. The state otherwise lacks the information to decide winners and losers efficiently, and in any case, it would tend to be corrupted by political or other sectarian interests (ignore for the moment the corruptibility of markets). On the creative commons side, which Kapczynski identifies with Yochai Benkler and Lawrence Lessig, there is a tendency to adopt exactly the same view of the state: “the commons, they suggest, is a concept that seeks not only to liberate us from predatory and dysfunctional markets, but also from predatory and dysfunctional states” (137). As she points out, IP does present a number of obvious instances of regulatory capture, so the fear is not an irrational one. The irony behind this distancing, however, is that both views also require the state to be a functioning entity capable of creating and executing reasonably coherent policy. For the pro-IP camp, the state has to be able to administer a property regime (and a complex regulatory bureaucracy); for the commons camp, the state has to be able to do things like fund basic research through agencies like the NIH.
Kapczynski’s point is an important one, and I have only a couple of things to add. First, she notes that the commons theorists tend to treat infrastructural projects and commons-based private ordering systems in the same camp. As she notes, this is a strange move:
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