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.