Friday, March 14, 2014

Real Accounts from Creators and Innovators: Making Do with Intellectual Property Misfit

Guest Blogger

Jessica Silbey

For the conference on Innovation Law Beyond IP at Yale Law School

If we are to take our job as IP scholars and law reformers seriously, we need to deal with facts. We can debate what counts as a relevant fact.  But that alone would be an improvement on theorizing about IP’s optimal rules without a more precise understanding of how creativity and invention occurs and disseminates “within” or “beyond” IP. There is a welcome move in intellectual property scholarship toward “empirically-based policy making” (to use Bill Patry’s phrase from his book How to Fix Copyright).  In the fair use arena, we have Aufderheide and Jaszi's Reclaiming Fair Use detailing best practices within specific content-creative communities. In the music industry, we have many such books, including McLeod and DiCola's book Creative License, which is a rich account of hip-hop music, based on hundreds of interviews with people in the field who explain how their music is made and how its making and distribution shifted in response to transformations in the law and corporate practice.  There are, of course, lots of quantitative empirical studies of IP litigation and regulation (e.g., the nature of cases filed, the structure and quality of IP decisions, trademark and patent practice at the PTO). And there is an increasing attention to IP’s “negative space”, how copying benefits innovation, and to the communities that develop their own normative practices as a supplement to or replacement for IP rules.  Nonetheless, there remains a dearth of research in legal scholarship about the practices and processes of creativity and invention that is the subject of IP laws. (Studies outside the legal field are more plentiful and substantial. They include work on the nature of creativity (Gardner, Csikszentmihalyi, Sawyer, Amabile), craft practices (Ulrich, Risatti), the sociology of invention (Merton, Biagoli), and the study of organizational behavior in science and technology (Murray, Von Hippel, to name a few).

In part because of this lack of factual grounding in IP scholarship, I began trying to cull (what I think are the) relevant facts to investigate whether our IP laws work as they claim (“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”)  Over the course of several years, I conducted face-to-face interviews with an array of artists, scientists, engineers, IP lawyers and business people in order to discern from their experiences how intellectual property works in their professional lives. My aim was to learn from those doing (or facilitating) creative and inventive work whether and how intellectual property law functions for them. My contribution to the conference will be a report on a slice of this qualitative empirical research.

Perhaps surprisingly, my interview data largely undermines long-standing economic explanations for IP. Interviewees describe a profound misalignment between the mechanisms and motives for doing creative work and the IP system that exists to promote creativity and innovation. Metaphors of real and personal property, the value of hard work and time, the importance of reputation, relationships and freedom dominate the interviews. By and large, these are not U.S. intellectual property interests. Difficult work doesn’t get you a patent and working long hours is irrelevant to copyright. Reputation is barely protected through our IP system (although trademark law comes close but works only for some and in limited situations). Some scholars espouse freedom and autonomy as basic principles the IP system should uphold, but the economic rationale behind our IP regimes dominate the legislative debates and the cases.

My book describing this research is due out in the fall, but I am excited to share some of it at the conference to continue the discussion – precisely because this conference brings together legal experts investigating the factual gap with which I am concerned. At the conference, we will be discussing the efficacy of “innovation prizes” instead of patents; private partnerships as innovation strategies; direct government incentives (grants) in lieu of IP rights; and, as Sean Pager my co-panelist will discuss, cultural production supplemented by (or beside) IP.  This is exciting progress in IP studies. As legislative log-jam becomes routine and broad-brush legal reform unlikely, it is prudent to refocus our research and discussion on particular fields and specific innovative and creative practices so we can then collate the analyses to understand the bigger picture of how innovation and creativity in fact happen. Examining the actual mechanisms and processes of cultural and technological production in our digital age is essential if we are to understand whether and how IP works today and if “innovation without IP” is sustainable in particular industries now and in the future.
Aside from gathering and analyzing facts to learn more about creativity and inventive practice,  I hope we might also start thinking more analytically and specifically about what counts as “progress” at which IP regulation is ultimately aimed. There is some new and on-going work in this field from folks who will be attending the conference (see, e.g., McKenna and Strandburg, Progress and Competition in Design; Beebe, Intellectual Property Law and the Problem of Aesthetic Progress). I have recently written an essay delineating the features of “progress” as interpreted and explained in my interview data (Silbey, Promoting Progress: A Qualitative Analysis of Creative and Innovative Production). This is a critical question and a subject that deserves more attention.  Is progress different for patent law than copyright?  Is “progress” something other than “more” and should new qualitative standards apply to determine outputs from an IP system? How we investigate the threshold question of what constitutes “progress” is a difficult matter, but that we do investigate it seems imperative to the job of understanding how and whether IP law is working as expected.

Jessica Silbey is a professor of law at Suffolk University. She can be reached at jsilbey at

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