Do the pecuniary gains of intellectual property motivate innovation?
Incentivizing the “progress of science and the useful arts” has been the goal of intellectual property law since our constitutional beginnings, but artists, scientists, businesses, and the lawyers who serve them continue to debate the merits of IP law and to what extent it stimulates or stymies innovation and creativity. In her new book, Jessica Silbey, Professor of Law at Suffolk University, combs through hundreds of hours worth of interviews with creators, employers, and IP lawyers, to examine whether the statutes are serving their intended purpose.
The following is an adapted excerpt from Jessica Silbey’s new book, The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property.
The “eureka” moment experienced by artists and scientists is a well-known cliché, depicted in cartoons as a light bulb appearing over one’s head. Indeed, artists and scientists do experience these moments of transcendent discovery as they work. Despite the frequency of these moments of discovery, the language and story types that accompany them are more complex and varied than simply “I woke up one day and the idea came to me.” To be sure, whether in the arts or the sciences, many of the interviewees describe ideas coming to them as if unconsciously, or as one writer says, as “a voice passing through” her. But these individuals also, at the same time, describe various activities and complex social structures that nourish their work, particular reasons for being in certain places at certain times, and diverse circumstances that led to the production of work that may eventually become intellectual property. The eureka moment is only one facet of the creation stories that interviewees tell. And yet the law that purports to govern the origination, production, and promotion of art and science does not reflect this situational complexity; instead, it appears to be structured around or explained by the stereotyped eureka moment.
Law and policy discussions of creativity and innovation do not dwell on the moment of creation or discovery, although “first in time” and “originators” of work are glorified and specially protected by US law. Instead, most legal policy conversations today revolve around incentives, either conflating extrinsic motivations (e.g., financial reward) with intrinsic motivations (e.g., emotional pleasure) or presuming a hierarchical relation between them, thus subordinating intrinsic motivation to financial reward. As the Supreme Court famously wrote about copyright, quoting Samuel Johnson, “No man but a blockhead ever wrote, except for money.” In other words, as the dominant legal story goes, we work (at art or science) primarily to earn a living.
Despite driving intellectual property law and policy discussions, the pecuniary gains to which an intellectual property owner is entitled are at best obliquely mentioned among the artists’ and scientists’ accounts of inspired beginnings, if at all. The absence of an economic incentive in the beginning correlates with recent studies that highlight the role of intellectual challenge and personal interest as intrinsic motivations.
Empirical studies also track the positive role that attribution and contribution have on collective social goods in motivating artistic and scientific production. In asking interviewees questions about how they got started writing a draft novel or conducting a scientific experiment, such as “How did you get into this line of work?” or “What prompted you to embark on that project?” I expected to hear a variety of answers, including “To earn a living” or “I was looking for remunerative work.” But these were rarely the responses. In fact, when pushed, many interviewees expressed surprise that they could earn a modest living from the artistic or scientific work about which they were passionate. The dynamics of these origin stories do not completely displace the economic incentive used to justify intellectual property protection. But the diversity among the interviewees’ accounts of how and why they embarked on a life of innovation in the creative and scientific fields stands in stark contrast to the romantic ideal of eureka moments and the monolithic language of monetary incentives. Additionally, and importantly, the diversity illuminates how the roots and offshoots of creativity and innovation are integrated into social organizations and legal relations.
Creators and innovators do not describe the benefits of ownership as a reason to embark on their life or project in art, science, or business.
Across the interviews, inventors and creators discuss the immense pleasure they feel when work leads to a discovery or creative experimentation generates a work. One general counsel told me he entered the e-commerce business because it built on his expertise, which had itself developed in part because he simply enjoyed working through the problems in the field. And really, this isn’t surprising. Social scientists who study work and creativity have said the same thing about drive and motivation: they happen not because of the financial rewards from particular products but, at least initially, because doing the work itself is a fun challenge. What is surprising for our understanding of intellectual property, however, is that these creators and innovators do not describe the benefits of ownership (e.g., control, revenue) as a reason to embark on their life or project in art, science, or business. Their origin stories give other reasons for doing what they do at first, infusing their everyday life as writers, musicians, software engineers, entrepreneurs, or chemists with the gloss of inevitability, luck, free play, and material or existential need.
I am not suggesting that intellectual property as a legal construct or a cultural object is unimportant in the creative or innovation industries. But these accounts from scientists, artists, intellectual property lawyers, and businesspeople offer accounts of the beginning of professions and projects in the creative and innovative fields that run counter to the understanding of intellectual property ownership as an investment vehicle. Intellectual property appears not to be the initial trigger for creative or innovative work. If it exists in the beginning at all, it is a hurdle to clear or a rule to ignore and often because a lawyer has brought it to the attention of the artists or scientist. But IP does emerge more prominently in the respondents’ later professional trajectories, especially in the context of business negotiations, growth, and conflict. In particular, intellectual property serves some of the interests that arise later in the life of creative or innovative work—facilitating focused and controlled distribution, and, in some contexts, commercialization. If these interviewees are to be a guide, intellectual property intervenes later and yet in more limited ways than the law, and the myth of origin story, claims.
Start Reading The Eureka Myth »
See also, Jessica Silbey’s article for Slate:
How misunderstandings about creativity sustain a flawed copyright system: http://t.co/nIXm31EWX0 pic.twitter.com/fGeNZSje7x
— Slate (@Slate) January 24, 2015
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