Can Louis Vuitton dance with Hiphone? Rethinking the idea of social justice in Intellectual Property Law

Abstract

This Article reconsiders the relationship between social justice and intellectual property through the lens of two conflicting cultural phenomena in China. The first cultural phenomenon, called shanzhai, legitimizes the production of inexpensive and trendy products like the HiPhone. The second phenomenon is the rise of China as the largest luxury market in the world, unleashing an unprecedented increase in the consumer demand for luxury brands such as Louis Vuitton. The shanzhai phenomenon clashes with the IP protection that forms the foundation of the successful luxury market in China.

By exploring the conflict between these two cultural phenomena, this Article puts forward a new theory of social justice and intellectual property. This theory calls for intellectual property law to be redesigned to support the redistribution of three kinds of resources: benefits from technological development, cultural power, and sources of innovation. The focus on these three redistributive mandates functions to reorient the recent heated debate on social justice and intellectual property toward an inquiry about the redistribution of resources in intellectual property law.

The Article further considers the substantive and symbolic values of the theory in promoting social justice through intellectual property law. With respect to its substantive value, it shows that this theory has the potential to overcome the limitations of John Rawls’s Difference Principle in dealing with redistributive justice issues within the ambit of intellectual property law. Moreover, this theory is valuable because it sets workable goals for mobilizing social movements to achieve cumulative eradication of injustice through intellectual property law.