The Introduction frustrates — readers, and therefore Sunder’s aims. The motivation — building a strong foundation — is understandable, but the result is a complicated, dense, confusing web of raw materials.

Fairness, Art, and Culture.

Chapter 1 challenges the economic equation of utility with maximum creative output: “[c]ulture is not just a set of ‘inputs.’” Fair use explains.

Fair use essentially ‘excuses’ activity that would otherwise be considered copyright infringement. Fair use helps relieve the rigid application of copyright laws that would otherwise stifle creativity. There is no clear rule: fair use is highly fact-specific and courts have broad discretion. Courts’ rare exercise of such discretion indicates a prejudiced and pervasive economic focus that renders law completely out-of-step with — indeed, tripping up and over — culture. If, as Sunder asserts, law no longer suits “how modern subjects engage the world,” we’re in a rather serious crisis.

Sunder makes this crisis instructive and productive. In Chapter 2, she defends and defines culture (and freedom within it). Culture is both a “raison d’être” and object of IP regulation. But law “misunderstands” culture, which is “not just a set of goods; it is a fundamental component of a good life.” DIY. DIWO. Bespoke. This is the Participation Age, wherein “cultural identity [is] based on autonomy, reason, and choice.” But law still sees culture as tradition or commodity. This utilitarian misconception makes law “fundamentally at odds with the emergent participatory culture,” with “profound effects on freedom, equality, social relations, politics, and economic development.”

Sunder’s remedy is fair culture: “free cultural exchange” through “inter- and intra-cultural borrowing” on “fair terms” or in a “socially just manner.” Despite the heaviness of these three concepts — freedom, fairness, and justice — Chapter 3 is exciting. Sunder appeals to ideals rather than telling about ideas.

Solomon Linda wrote the song “Mbube,” recorded it in South Africa in 1939, and sold it for the standard 10 shillings. “Mbube” became “The Lion Sleeps Tonight,” which alone generated about $15m as Disney’s Lion King (1994) anthem. Unrecognized and inadequately remunerated, Linda and his daughter died from curable diseases they just didn’t have the means to medicate — victims of unfair culture on several levels.

Linda’s ghost haunts this book as it has other scholarly and popular works. The quintessence of “international injustice” perpetrated by IP law, he is a “metonym for those human beings involved in the transnational processes of collaboration, cultural production, and wealth creation.”

His injuries are those Sunder seeks to salve and solve. She does so by arguing apart and through free culture. After de-romanticizing and demystifying the public domain, Sunder argues for laws that “facilitate the free flow of culture,” but fairly. For Sunder, “fair” culture means “ ‘the realization of cultural rights and the inclusion of everyone in cultural signification.’ ” (Note Sunder demonstrating her overriding commitment to bricolage, her faith in catholicism, and her ardor for democracy by defining this central concept with a quotation that is also a translation.) Freedom is development, and vice versa. Ultimately, “fair culture yokes together meaning and livelihood.”

Chapter 4’s heroine, Mary Sue, moves fair culture to fair use via fan fiction. Entertainment merits attention because, like law, “Hollywood’s global cultural hegemony translates Hollywood’s prejudices to the world.” Mary Sue is a “metonym for fair uses that rewrite the popular narrative.” Such “resignification” is fueled by the self-empowerment born of self-insertion (itself born of self-awareness). It denotes an ideal “semiotic democracy.”

Law.

The final three chapters comprise a distinct, focused, and digestible ‘legal’ unit. Chapter 5 pairs IP with international trade; Chapter 6 pairs copyright with entertainment; Chapter 7 pairs patent with pharmaceuticals, focusing on the famous Novartis decision of 2013.

International Law.

In Chapter 5, Sunder sure-footedly navigates the shifting grounds of TRIPS (the international treaty by the World Trade Organization governing Trade-Related Aspects of Intellectual Property). She uses James Boyle’s conception of the public domain as her compass. Boyle and Sunder are co-luminaries here, banishing shadows of insidious cultural assumptions with the torch of contemporary IP. Sunder picks up the torch not to steal the spotlight but because, I think, she believes her ideas are the most appropriate/powerful weapon on this new frontier.

Boyle’s ideas are the revolver to Sunder’s semi-automatic. (Boyle’s endorsement is listed first on the back cover.) I cannot imagine Sunder or Boyle being comfortable with this metaphor, but it is strictly technological: Sunder and Boyle are both on the defensive. Fighting for sustainability and preservation is ironic. But tools of resistance and self-defense/protection are necessary, as Sunder admits. They have assigned themselves to be the emergency response team, saving indigenous cultures from devastation. This is completely reactive. The threats to indigenous culture/traditional knowledge will clearly not be naturally neutralized. Thus guards must be appointed to serve and protect.

Traditional knowledge “typically refers to knowledge handed down from generation to generation.” But as TK has emerged as an internationally legally recognized category via WIPO, “reifying the negative” has perverted Boyle’s original theory of “cultural environmentalism.” Enter Sunder. “The ‘cultural environmentalism’ metaphor reifies the division between ‘raw’ and ‘cooked’ knowledge, a conceptual separation long fundamental to intellectual property law.” Reification unintentionally makes TK “the opposite of property.” “[T]he invention of traditional knowledge as perennially raw rather than cooked erects a false wall between modernity and tradition. Worse still, it deprives diverse peoples of the world of their humanity and cultural creativity.”

So what to do? Geographical Indications (GIs), also courtesy WIPO, are “hailed as the poor people’s intellectual property rights,” equipping the poor with modern tools to manage the modern world. But GIs’ benefits are limited, and reification persists.

The most promising solution lies in developing “marketable uses for third-world cultural products”: “preservation through commercialization.” Emerging organizations (e.g., the artists group SUPERFLEX) embrace the fundamental realization that “commerce and culture are not necessarily at odds.”

Copyright.

Chapter 6 returns to the entertainment industry, this time focusing on copyright and “transnational cultural flows” of influence. It is a return to the material of Chapter 4, but it is more aptly a companion to Chapter 3, particularly in its emotional register.

Sunder is troubled by a pervasive hypocrisy in the socially acceptable unidirectional flow of influence/inspiration. It’s okay for the West to mine the East because, Eastern work — even “the artistic expressions of great masters” — is considered raw and in the public domain. Once it reaches American shores, however, it becomes (increasingly) vigilantly protected intellectual property. (Disney, for instance, is guilty of cultural appropriation and straight-out theft. Bollywood is accused of the same, but is no more — and potentially far less — guilty, Sunder asserts.)

Sunder carefully explains that her argument is a bit of a subtlety/nuance: she objects only to the double standard because it thwarts her “explicitly transcultural and intercultural perspective.” The phenomenon is objectionable only because of the double standard. She doesn’t advocate for the termination of the relationship, she simply wants symbiosis instead of parasitism. “Culture will and must be shared widely and freely both across borders and within them.” (Yet again Sunder displays equanimity and optimism.)

Symbiosis in the form of derivativeness should be encouraged not just to reap “rich rewards for all cultures” but also because parasitism reifies, in the words of Ch. 5, “a long-standing meme about Asians as copiers, and Asian culture as one more suited to imitation than innovation.” Rethinking copyright means rectifying this macro-stereotype, and ‘liberalizing’ it will help explode negative stereotypes on an individual level. Cultural appropriation propagates empathy. As “the very essence of culture is sharing meaning with others and promoting mutual understanding,” culture “is fundamentally what human freedom is for. The cultural sphere of life encompasses those joys and relationships that make a human life truly worth living.” If that isn’t good — perhaps the epitome of “good” — what is?

Sunder sees copyright law as the corrective mechanism to achieve symbiosis in the entertainment industry. “Copyright governs the creation, distribution, and participation in culture and art.” With great power comes great responsibility, however: copyright can promote good or perpetrate wrongs like “misrecognition of global others.”

The same is true of art. Art should facilitate transcendence — empathy and sympathy — but it can also “insult, mischaracterize, colonize, and provoke misunderstanding.” Generally, contemporary art and popular culture fail to fulfill their potential for good.

“Modern intellectual property law ought to be attentive to crafting rules that promote the ethical extraction of knowledge.” The good here is clear — its value and rarity, its preciousness, and the evil of failure implicit with language evocative of diamond mining.

Patents.

Chapter 6's copyright gives us blood diamonds. Chapter 7's patent just shows us blood, on Lady Justice’s hands.

“Patents are a question of life and death.”

This is more subversive than it seems: to most people, patents are not a “question.” Patent is a pillar of IP, a stable category (even if the edges are disputed), and the bedrock of an enormous global industry. But Chapter 7 has little time for such subtlety. Indeed, Sunder has waited the whole book to say what she says here.

Where copyright needs to be re-envisioned, “in critical humanitarian and economic respects, our patent system is broken.” At least with respect to access to medicines, the “current international regime … must be fundamentally reconsidered.”

On many basic levels, the participatory democracy and development advocated-for by Sunder throughout this book (that is, the point of the book), is determined by patents: “Health without fear of dying prematurely is the essential foundation on which a full life can be built.” So first, patents help keep medicines from those in need. They are responsible for depriving people of the most basic freedom: to live. Second and more broadly, patent law is “a critical tool for structuring a society’s capacity to innovate.”

The complex tragedy of patent is represented by the situation in India, where the development of indigenous knowledge and industry, and thus affordable drugs, put them on the brink of autonomy . . . until TRIPS bound 90 percent of the world’s countries to a single approach that included expanding the range of patentable subject matter and extending patents’ term (to 20 years). 90 percent of the world’s countries were forced into a “one-size-fits-all” straightjacket. “[T]ying countries’ hands” in this way “conflicts with nations’” commitments to themselves and “threatens democracy itself.”

Reevaluation of the patent regime is necessary because the policy-oriented positions taken in State v. Shack and the WTO’s Doha Declaration have not sufficiently combated the “increasing absolutism” to which IP rights are “succumbing.” The fact is, “[p]atents have proven to be poor mechanism for distributing and delivering drugs that treat common diseases … [and] inadequate tools for spurring research into” so-called “neglected diseases.” So Sunder reevaluates by (1) examining alternative innovation policies and (2) considering more than just outputs in evaluating “effectiveness and justness.”