The bracing 'Intellectual Property's Leviathan' by Amy Kapczynski in 77
Law and Contemporary Problems 131
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Neoliberalism is a complex, multifaceted concept. As such, it offers many
possible points of entry into my primary field of study, that of intellectual
property (IP) law. We might begin by investigating tensions between IP law and
a purely economic conception of neoliberalism, for example.1 Or we might
consider whether or how IP law might be “insulated from democratic
governance” while also being rapidly assembled.2 In these few pages, I want to
focus instead on a different line of inquiry, one that reveals the powerful grip
that one particular neoliberal conception has on our contemporary imaginary:
the neoliberal conception of the state. Today, both those who defend robust
private IP law and their most prominent critics, I will show, typically describe
the state in its first instance as inertial, heavy, bureaucratic, ill-informed, and
perilously corruptible and corrupt.
This depiction of the state as a neoliberal Leviathan has become
commonsensical. I will not here attempt to defend an alternative account of the
modern state, but I do want to suggest grounds to suspect that this neoliberal
image does not serve us well. For example, as I will show, neither side in the
current debates over IP sustains an image of the state as irredeemably
neoliberal because a capable, flexible, and responsive state is essential to each
side’s competing vision of the good life. Insofar as our theories require a decent
state, it seems important to be able to describe one and to offer an account of
the conditions that might sustain it. Moreover, there is some evidence in the
domain of information policy that the modern state can be capable and
efficacious, as well as open to democratic claims-making.
In the domain of IP scholarship, and undoubtedly also beyond, we need a
serious, curious engagement with the state of the modern state. That
engagement ought not ignore evidence that the modern state is vulnerable to
ineptitude, and can be commandeered to achieve undemocratic aims. It should
insist, instead, that we better understand the conditions in which this is more or
less likely to be true. Ultimately, the field of IP law needs a postneoliberal
imaginary of the state, not because we are sure that we can bring such a state
about but because we cannot bring it about if we assume it away.
Kapczynski concludes -
The capable state is a concept that we seem to be unable to live without,
though this is admittedly not the same thing as showing that such a state does or
could exist. There are, however, empirical reasons to resist the notion that the
state is incapable of playing a major and positive role in information policy, and
not just because the state must be involved in any such scheme, including that of
creating exclusion rights. Might it be that the modern state is in fact better at
directly promoting innovation than it is at creating private property rights that
are well-configured do the same? After all, the same state that gave us the
“Mickey Mouse” Copyright Term Extension Act, which lengthened copyright
protection by two decades, not only prospectively but also retroactively (to
better incentivize Walt Disney, God rest his soul?), has also funded agencies
like the National Institutes of Health, the National Science Foundation, and
(more ominously), Defense Advanced Research Projects Agency, which are
widely credited with the foundational advances that made the networked
information age and the biotech age possible. Governments today fund not
only blue sky research, but also “mission-oriented research,” with particular
goals in fields like health and energy, where their role is critical not because
possible applications are distant in time, but because their social value is hard to
internalize even in the presence of private intellectual property rights, or
because the private sector is more risk-averse than is government. It is in some sense no surprise that all of this is not well-profiled in recent
debates about information policy and private IP law, particularly in the United
States. After all, as Erik Reinart has recently put it:
[S]ince its founding fathers, the United States has always been torn between two
traditions, the activist policies of Alexander Hamilton (1755-1804), and Thomas
Jefferson’s (1743-1826) maxim that ‘the government that governs least, governs
best.’ . . . With time and usual American pragmatism, this rivalry has been resolved by
putting the Jeffersonians in charge of the rhetoric and the Hamiltonians in charge of
policy.
This pragmatic accommodation may have a dangerous aspect, if it intersects
with neoliberal trends in a way that brings about a state that is less empowered
and less worthy of our respect. It would not be surprising if there were a selffulfilling
dimension to the neoliberal image of the state. If common wisdom
suggests that the state is an inertial Leviathan, will the best young minds want to
labor in its service? And if skepticism about the abilities of the state leads us to
relegate it largely to facilitating the functions of the market, would it be a
surprise if this new state were more susceptible to capture?
In these few pages I can do no more than generate some doubt about the
neoliberal image of the state that enjoys such currency in contemporary IP
literature and beyond. But I hope I have done that. What is needed in IP
scholarship—as elsewhere in legal studies—is a postneoliberal conception of the
state, but one that is attuned to the fact that some aspects of the contemporary
state in fact resemble the nightmarish neoliberal image. A call to bring the state
back in is not a call to dislodge the generative new work being done on the
commons, but rather to suggest that there is today no viable form of a
prepolitical commons, and that theorists of the commons need to make space in
both their accounts of the commons, and in their articulations of the political
domain that they wish to bring into being, for a postneoliberal image of the
state. Can we conceive of—even if we cannot easily achieve—a state that is
capable of constraining the proliferation of exclusion rights in information and
that can support social ordering beyond markets? Is it possible to imagine a
state that could temper the tendencies of certain market formations to promote
ghastly inequality, environmental collapse, and political corruption of the first
rank? If the answer is no, then we should fear grievously for our collective
future. In that case, the market and the commons will not be able to save us
from the neoliberal Leviathan, and the future of ideas will be bleak indeed.