Does IP Need IP? Accommodating Intellectual Production Outside the Intellectual Property Paradigm

Abstract

Arguments for strong intellectual property protection proceed on the assumption that exclusive rights are necessary to generate the incentives that encourage intellectual production. However, recent events suggest that that this assumption is questionable. Many creative endeavors are flourishing without strong intellectual property protection. Examples include fashion, stand-up comedy, magic, cuisine, and software (consider Linux, Apache, Firefox). Academic research has long been conducted under a sharing regime, and even after the Bayh-Dole Act permitted universities to claim patent rights in faculty inventions, the Mertonian norm of communalism continues to exert a strong influence over academic practices. And as Eric von Hippel has amply demonstrated, users generate and share the fruits of their creativity in contexts as varied as extreme sports, surgery, library science, and commercial high-tech manufacturing. Now that the existence of these robust forms of production has been recognized, it is tempting to argue that traditional intellectual property rights should be abolished. At the same time, however, there may be limits to creative production outside the intellectual property paradigm. Ostensibly open systems are sometimes functionally dependent on copyright, patent, trademark, or trade secrecy law. The operation of these systems can also be highly contingent – sometimes on the innovative industry at issue or the technological infrastructure supporting it; sometimes on the sensibilities of particular individuals. Much of the theoretical work treats the education of creative workers as exogenous to the problem of innovation, but the calculus can vary once the need to motivate the acquisition of human capital is taken into account. There are also normative problems: Open innovation may be nonoptimal, it may lead to undesirable strategies for maintaining a competitive advantage, and it can be exploitative of knowledge workers. This paper therefore starts from the proposition that intellectual property rights will not soon disappear. It is intended to contribute to a new conversation on how intellectual property law ought to change in order to accommodate and sustain what Mario Biagioli has termed IP without IP (Intellectual Production without Intellectual Property).

Keywords: intellectual property, user innovation, patent, copyright

JEL Classification: O31, O34, O38