Today is World IP Day – that annual celebration where global institutions glorify a system supposedly designed to “encourage innovation” and “reward creativity.” As much as I’d love to join the festivities, I find myself unable to raise a glass to a system that has betrayed its original purpose.
Let me be blunt: modern intellectual property regimes have morphed from shields meant to protect creators from market pressures into weapons that deepen their market dependency and actively distort cultural production. The recent Daagarvani case in India, where a court granted relief against a song composed in the same traditional Ragas as another, demonstrates how copyright’s expansionary logic now threatens centuries-old cultural practices and practitioners. Meanwhile, the rise of AI systems trained on vast datasets of human creativity intensifies these contradictions potentially, through arguments by creators and publishers facing existential crises, by commodifying creative capacity itself rather than merely creative works.
But these examples are merely symptoms of a deeper theoretical problem – one that demands we reconsider the fundamental nature and purpose of intellectual property itself. What if IP’s current form isn’t an inevitable or natural development, but rather a historically contingent arrangement that has become unmoored from its original protective purpose?
From Protection to Commodification: IP’s Betrayal
Let’s get something straight about IP’s origins. Those early regimes – from the Venetian printing privilege of 1469 to England’s Statute of Anne in 1710 – weren’t designed to “incentivize” creation through market rewards. Their actual purpose was to protect creators and disseminators from emerging market pressures so they wouldn’t be discouraged from producing socially valuable expression. It was to enable them and for their economic security in a market society (not luxurious accumulation)
The Statute of Anne explicitly speaks of preventing the economic “ruin” of authors and their families – not maximizing creative output or maximal “monetizing” at the cost of access to such intangible resources. Early patent systems emphasized protection for investments already made, not incentives for future innovation. These systems were fundamentally about providing basic economic security for cultural producers in increasingly competitive market environments.
But here’s where things went sideways: by conceptualizing this protection in terms of market-compatible property rights rather than direct provision or alternative support systems, these regimes inadvertently laid the groundwork for the commodification of cultural expression and information itself. What began as attempts to shield creators from market pressures gradually transformed into mechanisms for deeper market integration and expansion.
This transformation stemmed from several theoretical misconceptions. First, a fundamental error similar to what Dianne Elson identifies as adhering to a “labor theory of value” rather than developing a “value theory of labor” – naturalizing the relationship between labor and value, creating the illusion that market value is attributable to intrinsic qualities of creative works rather than to specific social relations that impact labour used to produce such output. Second, the “pre-social creativity” myth that ignores the fundamentally social and communicative nature of cultural production. Third, “physicalism” that inappropriately attempts to derive normative conclusions about nonrival informational resources from physical descriptions of property relations.
Over time, intellectual property’s conceptual framing shifted from protection against market pressures to “encouragement” through market incentives. Its institutional form increasingly converged with conventional property paradigms despite fundamental differences between informational resources and their non-rivalrousness and physical goods. Its scope and duration dramatically expanded through legislative amendments and judicial interpretations, and its relationship to creative practice became increasingly distorted.
The Distortionary Effects: How IP Warps Cultural Production
This market-based structure generates several distinctive distortionary effects that undermine IP’s purported goals. Let me walk you through three crucial ones:
1. The Price-Tag Effect: Barriers to Access and Participation
By creating artificial scarcity for inherently non-rival resources, IP enables pricing information goods above their marginal distribution cost (which for digital goods approaches zero). This pricing structure excludes potential users whose ability to pay falls below the market price but above the actual cost of providing access.
Beyond efficiency concerns, this raises profound questions of distributive justice and cultural participation. When access to informational resources depends primarily on willingness and ability to pay, distribution inevitably skews toward those with greater financial resources regardless of creative potential or social contribution.
2. The Privilege-Expanding Effect: Whose Preferences Count
Market-based allocation through IP amplifies preferences of economically advantaged groups while marginalizing others. Because markets respond to willingness and ability to pay rather than need or potential social contribution, investment naturally flows toward satisfying demands of affluent consumers while neglecting less economically powerful communities.
This manifests across various domains – from pharmaceutical research prioritizing wealthy-world conditions over “neglected diseases” affecting billions, to entertainment industries concentrating investment in products targeting demographics with greatest disposable income while culturally significant but less commercially viable expressions receive minimal support.
3. The Distortionary Effect: What Gets Produced
Perhaps most troublingly, IP systems create systematic biases regarding which types of creative activities receive investment and development. This “distortionary effect” operates through market mechanisms that value certain characteristics of informational goods over others, independent of their intrinsic merit or social contribution.
IP’s reliance on excludability – the capacity to control access and use – as the primary mechanism for monetizing informational goods creates inherent preferences for innovations and creative works that exhibit high excludability and appropriability through existing property rights, regardless of their social value compared to less excludable alternatives.
Traditional Justifications and Their Limits
Before proceeding further, we should recognize that defenders of strong intellectual property rights have marshaled various theoretical justifications for exclusive control. These fall into several main traditions:
Labor-desert theories, often traced to John Locke, suggest creators deserve compensation for resources they produce through their labor. However, with nonrival resources, labor theories at most justify claims to fair compensation, not exclusive control. When someone creates information, preventing others from using it cannot be justified as protecting the creator’s own use (which remains unaffected by others’ use) but solely as protecting compensation interest.
Personality theories, associated with continental European traditions, emphasize the intimate connection between creators and their works. Yet the personality interests these theories identify – primarily concerning recognition of authorship and integrity – do not inherently require restricting others from using creative works. These interests can be protected through attribution and integrity rights without granting comprehensive control.
Utilitarian theories justify IP through its role in addressing market failures in information production. However, this account provides no intrinsic justification for exclusive control over information – only adequate compensation to maintain production incentives. This compensation interest doesn’t inherently require exclusive rights but merely sufficient revenue to recover risk-adjusted development costs plus normal returns.
Democratic theories evaluate IP by its contributions to robust democratic culture and equitable access to conditions of self-determination. These approaches typically support limitations on exclusivity to promote widespread participation in cultural meaning-making.
As Profs. Talha Syed and Oren Bracha remark, none of these traditions provides compelling first-order justification for exclusive control rather than appropriate compensation or recognition. The strongest remaining defense lies in second-order institutional considerations – IP’s role in harnessing decentralized market signals of information to guide innovation and prices. Yet this justification remains parasitic on first-order values and contains inherent expansionary tendencies.
The Expansionary Logic in Action
The Indian classical music case of Ustad Wasifuddin Dagar v. A.R.Rahman and Ors. exemplifies IP’s inherent expansionary logic. The court granted relief against a song sharing ragas with another composition, ignoring that such similarity is both inevitable and desirable within this tradition. Every raaga has rules making perceivable similarity between compositions inevitable, including characteristic phrases called “pakad” that signify the raaga’s identity.
This case isn’t an isolated incident but part of a systematic pattern where exclusionary rights expand beyond justifiable boundaries to encompass elements that should remain in the cultural commons. The same dynamics appear in hip-hop sampling, documentary filmmaking, fan fiction, and countless other creative practices that necessarily build upon existing materials.
Similarly, the rise of AI systems intensifies these contradictions by simultaneously drawing upon vast reservoirs of human creative expression while potentially displacing human creators from traditional economic roles. AI development creates economic interest in previously uncommodified aspects of creative expression like patterns, styles, and techniques, completely displacing the safeguards against commodification of information and ideas embedded within doctrine.
These examples illustrate the broader theoretical problem: IP regimes contain an inherent expansionary dynamic that gradually disconnects them from any coherent normative foundation. Once information becomes commodified through property rights, it becomes subject to the ceaseless pursuit of exchange value, generating constant pressure to expand protection regardless of diminishing social returns, completely in ignorance of the communicative and non-rivalrous nature of these resources.
From Incentives to Enablement: A Vision of Human Flourishing
To understand the true underlying purpose of intellectual property, we need to distinguish between two fundamentally different approaches to meeting human needs: self-preservation focused on securing basic necessities versus self-love potentially expanding into unlimited accumulation.
Jean-Jacques Rousseau’s political philosophy offers crucial insights for reconceptualizing intellectual property beyond market paradigms. Rousseau directly challenged emerging commercial society by distinguishing between apparent freedom within market relations and substantive freedom through social solidarity. His analysis illuminates how negative liberty focused on protecting market transactions fundamentally differs from positive liberty providing conditions necessary for meaningful self-determination and creative flourishing.
Rousseau recognized that genuine needs in social contexts are intersubjectively determined rather than individually defined without limit. He distinguished essential needs from luxuries, rejecting commercial society’s “compete or die” logic that transforms preservation requirements into endless accumulation pursuits. This distinction grounds his critique of financial systems that place “public good and freedom on the auction block,” making “venal souls” through constant pressure toward accumulation beyond actual necessities.
Rousseau thus emerges as an early theorist of human flourishing approaches contrasting with individualistic welfare maximization. He explicitly distinguished wealth from prosperity, arguing “it is better to live in plenty than in opulence.” His political economy focused not on incentivizing through competitive pressures but on socially enabling through provision of conditions necessary for meaningful freedom and agency.
Applied to intellectual property, Rousseau’s insights suggest shifting focus from market-based incentives to social provision of conditions necessary for creative flourishing and enablement. Rather than relying primarily on exclusionary rights enabling market success, this approach would directly address creators’ basic security needs while ensuring broader access to cultural and knowledge resources necessary for creative development.
Here’s the fundamental insight: humans don’t primarily require monetary incentives to create – they require not being disincentivized by economic insecurity. The problem IP purports to solve isn’t fundamentally about motivating otherwise reluctant creators through financial rewards, but about enabling creative expression by removing the barriers of economic precarity.
By reframing the issue from positive incentives to removing disincentives, we can envision alternative institutional arrangements that secure basic creative needs without resorting to exclusionary rights that ultimately subject creators to market dependencies.
The theory I propose, distinct from rewards or incentives justifications, is that copyright is a historically specific tool (in the age of capitalism) of enablement for human flourishing. It is a tool meant to ensure that those who wish to expressively produce are free to do so without worrying about fulfilling their basic economic needs in a modern market society – a tool to affirmatively protect those who wish to produce expressions from involuntary subjection to market imperatives.
This human enablement framework encompasses two complementary dimensions: negative freedom from market dependency and positive freedom to participate meaningfully in cultural production. Freedom from market dependency involves reducing creators’ reliance on commercial success for basic economic security, while enabling positive freedom requires developing capabilities necessary for meaningful creative participation through education, exposure to diverse cultural materials, and institutional support.
A Research Agenda: Denaturalizing and Dereifying IP
Before discussing specific reforms, we need a robust research agenda to reconceptualize intellectual property. I suggest employing two critical methodological tools from the Law and Political Economy tradition:
Denaturalizing is a mode of critique that attempts to show the pre-conditions of the existence of a legal tool and delimit the conditions of possibility of the field itself. By denaturalizing intellectual property’s social relations and examining its contextual emergence, we can uncover the historically specific social dynamics that shaped this legal tool, providing both an explanatory and programmatic frame for understanding its purpose and development.
Denaturalization allows us to understand IP not as a mere coincidence or divine realization, but as a consequence of the imperatives of a market society – its purpose not to form markets but to protect from market imperatives, ensuring fair recompense for basic necessities and risk-adjusted production costs.
Dereifying follows from denaturalizing, challenging the presumption that ownership through exclusionary rights are the only monolithic tool to further IP’s policy objectives. Through dereification, we can conceptualize IP’s commonly used tools through a relational understanding – tweaking scope, duration, and applicability in contexts where competing fundamental social interests like education, research, and meaningful cultural participation outweigh individual enablement claims.
This approach brings to light alternate tools, including non-market alternatives like public funding, compulsory licensing, remunerative levies/tax, and general social provision of access to basics and creative agency, calibrated along a continuum of contexts to embed IP’s social relations. Moreover, it allows us to inject proportionate priority, tailoring tools and remedies to prioritize interests of those who genuinely need legal tools for enablement due to no fault of their own.
Scholars and practitioners must embrace these methodological approaches to develop a framework that can meaningfully address both current distortions and emerging challenges like AI. This isn’t merely an academic exercise – it’s essential for preserving meaningful spaces for human creativity in an increasingly commodified cultural landscape.
Practical Reforms: Scaling Back Exclusionary Rights
Building on this theoretical foundation, some specific structural changes to copyright doctrine and policy could be:
1. Limiting the Derivative Right to Different Forms/Mediums
The derivative right should only cover adaptations in a different medium or instrument of expression and perception – like adapting a book to a film, not creating another book based on the original. This would eliminate excessive licensing costs for genres that inherently build upon previous works in the same medium.
2. De-fragmenting the Reproduction Right
Courts should shift from analyzing similarity of fragments or elements to examining whether the allegedly infringing work substitutes for the overall aesthetic experience of the original. This would ensure that works which inevitably contain similar elements (like compositions in the same Raaga) aren’t disadvantaged by either excessive licensing costs or reduced appropriability.
These structural changes would reduce the potential to appropriate the highest possible economic value from single highly excludable expressions. However, they would enlarge the cultural breadth and diversity of expressions receiving investment – creating a more egalitarian starting point for cultural creators regardless of their chosen genre or tradition.
3. Beyond Exclusion: Alternative Support Mechanisms
We should also consider diverse institutional arrangements supporting creative flourishing beyond exclusionary property rights alone:
- Direct public funding through grants, fellowships, and institutional support
- Procurement systems involving public or collective purchasing
- Prize systems rewarding valuable contributions without restricting subsequent use
- Community-based support through patronage, crowdfunding, and membership models
- Liability rule approaches allowing use with mandatory and fairly determined compensation- something embedded within our Copyright system in the name of statutory and compulsory licensing.
Different creative contexts require different support structures depending on their specific characteristics and needs. This institutional pluralism recognizes that the one-size-fits-all approach of exclusionary rights isn’t appropriate across diverse creative traditions.
Conclusion: Reclaiming IP’s Protective Purpose
On this World IP Day, rather than uncritically celebrating a system that has increasingly betrayed its original purpose, let’s commit to reimagining intellectual property as a tool for human enablement rather than market subjugation.
Intellectual property regimes present a curious paradox: they purport to promote innovation and creative expression by providing creators with economic security, yet they deploy mechanisms that ultimately deepen creators’ dependency on market success rather than insulating them from market pressures. This fundamental contradiction remains largely unexamined in mainstream intellectual property discourse, which typically accepts market-based approaches without interrogating internal tensions.
By understanding IP as historically contingent rather than inevitable, we can identify points of possible transformation. By dereifying its current institutional forms, we can develop a pluralistic approach calibrated to different contexts and cultural practices.
This reconceptualization becomes especially crucial as AI intensifies IP’s contradictions. The challenge now extends beyond protecting specific works to preserving human creative agency itself. A human enablement framework offers promising avenues for addressing these challenges by focusing on creative capacity rather than mere market incentives by commodifying “works” which potentially leads to the negative effects outlined above.
Implementing this vision requires embedding intellectual property within broader social frameworks: substantively anchoring it in democratic values rather than market efficiency alone; conceptually maintaining doctrinal integrity against market-driven distortions; and globally breaking property’s monopoly on institutional imagination by developing complementary support mechanisms beyond exclusionary rights.
By focusing on securing basic needs rather than maximizing returns, by developing alternatives to exclusive rights where appropriate, and by structurally limiting exclusionary rights to prevent their inherently expansionary tendencies, we can create legal frameworks that genuinely support diverse creative traditions while fostering broader cultural participation.
Only then can we resolve the fundamental contradiction at the heart of modern intellectual property and reclaim its original protective purpose.
Would leave you all with the best IP paper I read this last year- “A Law and Political Economy of Intellectual Property” by Profs. Talha Syed and Oren Bracha.
IP Musings 