Creativity, Pluralism, and Fictitious Narratives: Understanding IP Law Through Karl Polanyi

Abstract

For over a century, jurists have debated as to whether IP rights should be extended to this or that output such as photographs, computer programs, products of data aggregation, virtual objects, natural and organic materials, “creative” algorithms, and genes. What is surprising is the continuing and bifurcating discourse landscape: “IP law protects and rewards creativity” versus “IP law protects investment”. This paper suggests that IP law indiscriminately and simultaneously protected all sorts of res emanating from creative and entrepreneurial labour as well as from capital investment. Continued attempts to discuss or adjudicate IP law, policy and reform through strict conceptual silos such as creativity, labour, and investment are doomed narratives.

Instead, I invite readers to appreciate that early modern rules in sensu lato were about mixed motivations of reward, investment, recognition, competition, honour, public interest, and more. The implicit suggestion in this paper is that the root cause of continuing legal conundrums today is the failure to appreciate the pattern set out by two related socio-legal mappings: (i) motivations for early rules in relation to creative and entrepreneurial labour and products in Europe; and (ii) the extent to which current IP norms and laws evolved to absorb such myriad motivations over five hundred years. I employ Karl Polanyi’s theory on the commodification of labour, including investment-backed labour, into tradeable, fictitious commodities, where law and property are recognised as vital institutional tools which disembed and re-embed society from/into the economy. Polanyi’s motivation ethos is effective in synthesising the different mapping points to create a pointilliste landscape which, in turn, shows why IP law only makes juridical sense if it is viewed as a pluralistic concept.