Put another Renoir on the barbie

From 'From Barbie to Renoir: Intellectual Property and Culture' by Susy Frankel in (2010) 41 Victoria University of Wellington Law Review 1-15 -

Because of the pervasiveness of intellectual property in our culture, the right way to discuss the limits of intellectual property is to understand and try to articulate the relationship between intellectual property and culture. We know it is there but what does this relationship tell us? And how can we use the understanding of that relationship in a practical way?

One of the phenomena that we see is that there have been certain products and brands that have become boom industries. The question that I am interested in is not whether cultural and creative industries are goodies or baddies, whether Barbie has less or more artistic merit than Renoir, but whether if the law over protects these kinds of cultural products we do damage to culture itself. The law is too protective if it starts to be too constricting on the types of artistic, literary and musical works that can be made. The law is too restrictive if people will not create certain works because they are not sure if the law allows them to or not and they cannot easily find out the necessary information to determine if what they do is legal creativity or not.

The problem with the incentive and reward approach to intellectual property is that it loses sight of the public interest in the structure of the law as a whole. In essence the rights of individuals appear to have trumped the collective interests in intellectual property law. Those collective interests include its effect on culture. This includes what we might call expressive values and free speech, but it is not just those values at play. Society has a vested interest in supporting individual rights. The appropriate balance between collective interests and individual rights is not an easy balance to achieve. Finding that balance requires that we look at the fundamental reasons why we have private rights in intellectual property. Asking how much reward is necessary, and questions of that kind, ultimately do not reveal much more than some businesses do rather well out of intellectual property rights. Looking at the relationship between culture and intellectual property is a much better starting place because ultimately it can show more clearly where to draw the line.

The idea that there is a link between culture and intellectual property is not new. But exactly what the link is, and how it can be appropriately reflected in the law, is not selfevident. The starting clue, that I have used, is that cultural industries are protected by intellectual property rights. But it is not the status as a cultural industry that achieves this. It is the creation of cultural products. You receive copyright whether you are a big player or a small player.

When intellectual property rights interfere too much with the type of cultural product that emerges, particularly from small players, that is when a line can be drawn. But it is complete nonsense to suggest that the drawing of the line is for any reason other than to support one cultural interest over another. This dominance of one cultural interest over another is often the consequence of a focus only on economic interests. In as far as New Zealand can, we should draw our own lines about cultural values. Such an approach is also likely to be economically beneficial.