This traditional justification for intellectual property rights is challenged by recent research presented at the European Policy for Intellectual Property (EPIP 2015) conference in Glasgow, organized by CREATe (Research Councils UK Copyright Centre).
The study, presented by Professor Jessica Silbey, and recently published as a book by Stanford University Press, is based on five years of long-form interviews and their qualitative analysis with a broad range of artists, scientists, engineers, business people and lawyers. The study investigates why and how people and firms create and innovate through direct accounts from the creators, innovators and firms. It asks: is the promise of exclusivity through IP an important factor in creative and innovative industries? The study draws three primary conclusions.
First, IP rights are profoundly misaligned with the desires and needs of most everyday professional creators and innovators, including their businesses. IP can help people and firms earn a living. Everyone described needing money to live and continue working. But the scope of the exclusive rights that IP provides that would enable monopoly prices was only a small part of the sustainability of and satisfaction in their work. IP rights are left “leaky” – infringement is ignored, tolerated, anticipated, and in some cases welcomed.
Second, other professional goals predominate over exclusivity (to facilitate rents). Interviewees describe making and doing their work for reasons of self-determination, to build and sustain relationships (both individual and community-based) and to challenge themselves to improve their skills and knowledge. The rhythm and flow of everyday work facilitates creative progress and innovation. Developing an appreciative audience and collaborating with diverse professionals motivates them and makes work better. Reputation and autonomy are more important than money to professional satisfaction. These interests are unrelated to IP’s traditional justification.
Third, most people and firms create and innovate in the shadow of IP law in order to disseminate their work. They describe their professional identities as people who make things in order to distribute them. This means that they compromise on whatever exclusivity over their work they have in order to disseminate it to particular people and communities. The dissemination goal so predominates that they develop diverse and nuanced mechanisms for distributing their work to various venues. The study identifies five discrete forms of distribution, only one of which relies on IP to successfully occur. And three of the distributional forms are looser than IP regulation allows. This supports the first finding that IP rights are misaligned with goals and interests of creators and innovators and further suggests that IP rights are stronger than they need to be. It suggests that IP rights may create a form of property waste, economic inefficiencies and frustrations if followed to the letter of the law.
In light of these findings, the study proposes several new research questions based on hypotheses this data has generated.
How do the findings distribute over larger and more focused populations (by geography, jurisdiction, industry)? If firms and individuals diverge in their goals, how might reflecting actual practices and desires for dissemination (a loosening of IP’s exclusivity) affect the labor relationships between firms and their employees? Finally, if dissemination is a dominant goal of creators and innovators and a primary way of achieving professional satisfaction, “fairer uses,” limitations and exceptions reform, and new and more forms of micro or compulsory license regimes should be considered as we move forward with IP reform in the future.
Notes for editors: ‘Distribution’s Diversity and Fairer Uses: A Qualitative Analysis of Borrowing Practices in Creative and Innovative Industries‘ by Jessica Silbey is a paper presented at the European Policy for Intellectual Property (EPIP) Conference, University of Glasgow, 2-3 September 2015. For more information visit: http://www.epip2015.org/
Jessica Silbey is Professor of Law, Northeastern University School of Law, Boston, Massachusetts, U.S.A.
New research presented at the EPIP 2015 conference will be shared on social media using the hashtag #epip2015