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Creativity, Law and Entrepreneurship Workshop at Wisconsin

On Friday I was in lovely Madison, Wisconsin for the Creativity, Law and Entrepreneurship Workshop which Shubha Ghosh put together and was sponsored by UW Law School, the Institute for Legal Studies, the Initiative for Studies in Technology Entrepreneurship (INSITE), and the Global Legal Studies Center. I’m afraid I don’t have the ability to capture everything that happened, but I will try and call out what each panel did (although the link above sets out the program and speakers).

Those details are below the break. Before that, I want to say that Wisconsin was a great host. The group was excellent. Each paper linked in some way to the other papers in its session. In addition, the pace was perfect. Three papers per session allowed one to present the core ideas of the paper and have plenty of time to get into the discussions. Furthermore, it was a a great pleasure to have the business school folks attend. I, for one, was able to get valuable feedback and learn about some literature that looks like it will help my work in general. In short, thanks to Wisconsin and all those who put together the event for a job well done. Now on to the panels.

The first panel topic was Social Entrepreneurship; the second, Creativity in Business & Social Contexts; the third, Lawyering & the Creative Process; and the final panel, Creativity & Construction of Legal Rights.

The Social Entrepreneurship panel consisted of:

Lisa Alexander (Assistant Professor of Law, University of Wisconsin Law School)
“Restoring Trust in Microenterprise Financing: Communities, Markets, Social Capital & Law”

Megan M. Carpenter (Associate Professor of Law, Texas Wesleyan University School of Law)
“From Coal to Content: The Role of Intellectual Property in Transitional Economies”

Robin Paul Malloy (E.I. White Chair and Distinguished Professor of Law, Vice Dean, and Director of the Center on Property, Citizenship, and Social Entrepreneurism, Syracuse University College of Law)
“Real Estate Transactions, Market Exchange Theory, & Entrepreneurship”

with Shubha as Chair and Discussant.

To me all three talks raised the question of what system allows for entrepreneurship. Lisa and Megan addressed different views of what entrepreneurship means to specific groups. Lisa is looking at low income communities and the ways that they stimulate entrepreneurial activity. In addition her work aims to draw on social capital theory. Megan’s work asked what is intellectual property’s role or could be in transitional economies. She offered that universities, legislation, and shoring up IP law could together stimulate such economies. Robin’s work went to the heart of how property operates. He argued that we can conceive of property real or otherwise as part of market exchanges (I apologize as I am sure I am missing some of the nuance in Robin’s talk). He connected the idea of markets to entrepreneurs by arguing that the entrepreneur sees a place where the system is not matching what he knows to be possible and that is opportunity in his view. So the question is what system will encourage people to say they want to be the first baker, butcher, software maker.

Creativity in Business & Social Contexts, was the next panel. Here are the panelists:

Olufunmilayo (Funmi) Arewa (Associate Professor of Law, Northwestern University School of Law)
“All Work and No Play: Intellectual Property as Serious Business”

Christoph-Beat Graber (Professor of Law, University of Lucerne)
“How Is Creativity Manifested in Traditional Cultural Systems and within International Trade Law?”

Debora J. Halbert (Professor of Political Science, University of Hawaii at Manoa)
“Creativity without Copyright: Anarchist Publishers and their Approaches to Copyright Protection”

with Shubha as Chair and Discussant.

Funmi questioned the valuable asset model of creativity. She argued that it is only recently that great works of art and music are taken to be sacred such that one must not alter or play with them. She called the current model a museum approach in that we have become passive and no longer engage with creations. Christoph tackled the difficult question of owning culture and which expressions can or cannot be traded. Drawing on Niklas Luhmann‘s work, Christoph argued that there may be a way to allow groups to determine locally what they wish to do with cultural work and then move the process to the global level to see how to implement and recognize that choice as well as see where harmonization may be necessary. Deb talked about anarchists and copyright. It was fascinating to see how different anarchist publishers saw copyright, displayed copyright notices or not, and the stories about whether authors or publishers were still looking to or asserting copyright in some way.

Lawyering & the Creative Process was the third panel with

William T. Gallagher (Associate Professor of Law, Golden Gate University School of Law)
“‘Are They Real Lawyers?’: The Role of Patent Prosecutors in the Patenting (and Inventive?) Process”

Stuart J.H. Graham (Ewing Marion Kauffman Foundation Fellow in Social Science and the Law, University of California, Berkeley – School of Law (Boalt Hall); Assistant Professor of Strategic Management, College of Management, Georgia Institute of Technology) and
Ted M. Sichelman (Ewing Marion Kauffman Foundation Legal Research Fellow, Berkeley Center for Law & Technology)
“The 2008 Kauffman-Berkeley Patent Survey: Why Do Entrepreneurs Patent (And Not)?”

Richard S. Gruner (Professor of Law & Director, Center for Intellectual Property Law, John Marshall Law School)
“The Evolution of Collaborative Innovation: Evidence from the Patent Record”

as panelists. Darian Ibrahim (Assistant Professor, University of Wisconsin Law School) was the Chair and Discussant.

These papers were pushing the way we think about patents. Bill is pursuing questions about patent attorneys as lawyers. His paper goes into questions about enforcement of patents, the perceived advantages of enforcement, and how these attorneys view patents in general. That dovetailed with Stuart and Ted who talked about some great findings based on empirical work regarding the role of patents in entrepreneurial companies. Last, Richard looked at the way patents and coordination in entrepreneurial companies is changing given the increased distance of innovation teams.

Creativity & Construction of Legal Rights was the last panel with

Deven Desai (Associate Professor of Law, Thomas Jefferson School of Law)
“Individual Branding: How the Rise of Individual Creation and Distribution of Cultural Products Confuses the Intellectual Property System”

Steven Hetcher (Professor of Law, Vanderbilt University Law School)
“The Challenge of Monetizing User-Generated Content”

Sean O’Connor (Co-Director, Graduate program in Intellectual Property Law and Policy, Faculty Director, Entrepreneurial Law Clinic, and Associate Professor of Law, University of Washington School of Law)
“The Central Role of Law as a Meta Method in Creativity and Entrepreneurship”

as panelists and Jeffrey M. Lipshaw (Associate Professor of Law, Suffolk University Law School) as Chair and Discussant.

I argued that Benkler’s world of social production has the seeds of its destruction latent within it. In short, as individuals rise, they will seek and already seek to assert old and new property rights. I argue that the law ought not recognize those rights and doing so would in fact undermine some if not many of the benefits that social production offers. Steven’s work takes on Lessig and issues of fair use as they appear in remix and fan fiction. I have to (and want to go deeper) into Steven’s work on norms but I think he is arguing that fan fiction is fair use but we face the problem that one cannot make money from it. Norms play a large role in this dynamic. Last, Sean argued that we should think less about incentives to create artifacts (Mike might say things) and more about the role of methods. The history of invention is more about productive pursuits and serving the commercial and service needs of a society in this view. The problem is that we have slipped into a system more interested in the artifact or thing (I wonder whether this problem is a reification one).

So there it is. I apologize for not nearly doing justice to the talks. They were dense and I am no scribe. Nonetheless, I hope that I have whetted your appetite for the works and encourage you to check out the people and their work.

Last, I again want to thank all involved and especially Shubha for putting together a great conference.