Valuable Asset or Vibrant Force? Intellectual Property and Conceptions of Culture

Olufunmilayo B. Arewa, Northwestern University School of Law

Abstract

Discussions of intellectual property as property often implicitly rely upon conceptions of value that give primacy to economic and business value while dismissing or even ignoring questions of cultural value. Questions of cultural value are, however, fundamental to discussions of intellectual property today. Discussions of intellectual property often emphasize treating cultural material as valuable assets and highlight the role of intellectual property in protecting such assets. Valuable asset models of culture accentuate the business and economic utility of intellectual property assets. Valuable asset approaches, however, typically reflect an incomplete understanding of the roles of culture and the intersection of culture and intellectual property. Further, perspectives that emphasize culture as a valuable asset tend to ignore the importance of cultural material as a vibrant force that plays an important role in the creation, transmission, and recycling of culture that is a key feature of vibrant and living cultural traditions and an important mechanism by which culture changes and is recreated. Perceiving culture as a vibrant force draws attention to the many potential ways in which culture is shared, used and mixed. An emphasis on culture as a valuable asset often leads to treatment that implicitly advocates the creation of museums of cultural knowledge and conceives of only particular parties as acceptable cultural curators. As a result, valuable asset models may involve questionable assumptions about authority, control, and cultural expression. Focusing on issues that arise in both the U.S. and international contexts, this article outlines the ways in which valuable asset approaches to culture are increasingly accepted in intellectual property discourse and the broader implications of such perspectives. It also evaluates the potential pitfalls of viewing culture through a valuable asset lens given the shared nature of many cultural resources and proposes more appropriate ways to conceptualize and treat cultural resources in the intellectual property arena.