Does IP have its models of creativity and innovation all wrong?
Rebecca Tushnet posted this characteristically thorough account of a great conference panel, from an American Law Institute conference on copyright and patent law. The panel title was “Creativity and Incentives to Create,” and it featured lead presentations by Keith Sawyer, a psychologist and scholar of creativity and learning at Washington University, Jessica Silbey, a law professor at Suffolk University who is in the middle of a great ethnographic study of creativity norms among creators in different industries and communities, and Rebecca Tushnet herself, also a law professor, on noncommercial creators and production.
Sawyer’s work, which I first encountered a decade ago when I was working on scholarship in fair use, emphasizes the primacy of what we call “creativity” as a phenomenon that locates individual cognitive processes within group practice. The notion that IP law and lawyers find so compelling — what kinds of incentives should IP law supply to creators, given (possible) variations in creative practice between, say, copyright-oriented fields and patent-oriented fields, or between different disciplines or markets or industries — is alien to his research questions, but also foreign to his findings. If we want IP policy to track actual behavior and the psychology of creativity (and maybe we do, and maybe we don’t), then IP scholars and policymakers are asking all of the wrong questions.
So what I found provocative about the account of the panel presentations was this: Virtually all of the questions and comments that followed the lead presentations seemed to focus on “classical” IP incentive frameworks. Which industries and companies respond to IP incentives, and which do not? Â Which inventors and creators respond to IP incentives, and which do not? I am oversimplifying a bit, and I am interpreting based on a not-quite-verbatim account rather than based on my own hearing the remarks, but I don’t think I am far off. I have heard Sawyer present before, in person, and the experience was similarly disorienting: The IP scholars in the room almost literally did not know what to make of his work, because it sounds in a register that does not overlap with theirs (ours). And Keith Sawyer himself, though an accomplished and widely cited scholar, did not quite know what to make of these IP beings who were talking about “his” field (creativity) as if it were theirs.
More than 20 years ago, Pam Samuelson organized an early and magnificent symposium at Pittsburgh on computer programs, algorithms, and intellectual property law, and out of that event came a terrific short piece by the computer science legend Allen Newell. The title was “The Models are Broken, The Models are Broken” (47 U. Pitt. L. Rev. 1023 (1986), commenting on a pro-patents-in-algorithms piece by Don Chisum). Newell argued that the “algorithm” is simply the wrong conceptual category for organizing a debate about the patentability of computer software. Algorithms are effectively ubiquitous in computing, he pointed out, so any model of patenting that sought to differentiate patentable inventions from un-patentable algorithms was doomed to failure.
I have a similar sense about scholarship on “creativity” within IP: Creativity is ubiquitous. The IP policy challenge isn’t to figure out where creativity responds to incentives and where creativity does not respond to incentives. The challenge is to figure out what kinds of activity — creative or otherwise — belongs in what law and policy domains