38 Pages Posted: 12 Oct 2013 Last revised: 8 Oct 2015
Date Written: October 9, 2013
Individual citizens have been found to be a major source of new product and service innovations of value both to themselves and to the economy at large. These citizen innovators operate in a little understood legal environment that we call the innovation wetlands. We show via a review of fundamental rights guaranteed in the U.S. Constitution and elsewhere that individuals in the United States participating in the innovation wetlands possess strong legal protections with respect to both their freedom to innovate and their right to diffuse information about their innovations to others. However, we also show that legislation and regulation — often promulgated without awareness of consumer innovation as a valuable resource — can, in practice, significantly interfere with individuals’ exercise of their fundamental freedom to innovate. This interference can cost society dearly by discouraging and slowing innovation or even thwarting it entirely. Just as intellectual property may chill citizen user and open innovation by raising the costs of innovation, so may regulatory property rights agencies grant to incumbent market actors.
We offer three approaches to protecting the valuable resource of innovation by individuals from excessive negative impacts caused by legislation and regulation. First, we propose enhancing general awareness of the issue by framing the concept of individual innovation rights as an “innovation wetlands” that must be protected from encroachment and despoilment. Second, we describe the legislative and regulatory frameworks and practices that demark today’s innovation wetlands, as experienced by individual and collaborating innovators. Third, we suggest improvements that can strengthen protection of the innovation wetlands, including heightening awareness of the issue in existing, mandated cost–benefit analyses that are already applied, although imperfectly, to regulation in the United States.
Keywords: innovation wetlands, right to innovate, innovation rights and innovation, user innovation, open innovation, invention, intellectual property, regulation, patent, copyright, privacy, commerce, freedom, liberty, infringement, agency
JEL Classification: O31, O32, O33, O34, O38, K10, K20, K23, K32, K42, D13, D23
Suggested Citation: Suggested Citation
Torrance, Andrew W. and von Hippel, Eric A., The Right to Innovate (October 9, 2013). Michigan State Law Review, No. 793, 2015. Available at SSRN: https://ssrn.com/abstract=2339132 or http://dx.doi.org/10.2139/ssrn.2339132