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Monday, June 21, 2010

What Artists and Scholars Think About When They Think About Intellectual Property Law

Jessica M. Silbey, Suffolk University Law School, has published Harvesting Intellectual Property. Here is the abstract.
 

It has become commonplace among intellectual property scholars and policy makers concerned with promoting innovation to dispute the reasonableness of laws that protect intellectual property. By and large, legal scholars explore the question of whether the grant of intellectual property rights adequately (or at all) encourages innovators by looking mostly at output: the intellectual property granted and cases litigated concerning that intellectual property. Scholars ask, for example, are the grants of rights too broad or too frequently granted? With patents, they ask whether patent thickets exist and, if so, do they hamper innovation rather than encourage it? With copyright and trademarks, they ask whether the digital medium alters how copyright and trademarks should be protected given the relative freedom with which digital data flows and free-riding and user-generated creation is more likely? By analyzing particular statutory provisions or cases for their reasonable implications on the issue, legal scholars mobilize economic theories of rational actors or moral theories about owning the fruits of labor to identify the problematic or acceptable bases for the legal rules.

But rarely do we ask the people who are innovating – inventing, writing, developing, commercializing and possibly getting paid for their work (whether or not through intellectual property royalties) – whether the ability to protect their innovations through intellectual property law played any part in their endeavor, and if so, what part law played in promoting innovation. We rarely ask whether intellectual property law works in practice as we imagine it does in theory. My project, which has culminated in a pilot study of nearly 30 face-to-face interviews, explores the germination, harvesting and commercializing of art and science by and between creators and innovators, on the one hand, and their business managers or lawyers, on the other. These creative and innovative practices are being investigated in contexts in which intellectual property, were it sought, would play a role in the individual’s welfare or organization’s vitality. I intend this qualitative empirical study to lead to an understanding of whether and how the public discourse on intellectual property law (the central incentive story about public goods and monopolies) connects with intellectual property creation and distribution on the ground.

Too few studies of intellectual property look at the actual practices of invention (creation and discovery) and its commercialization to understand the relationships among daily work practices, organizational structure, perceptions of and the formal application (or not) of intellectual property law. Most legal scholarship, if it is empirical, takes filed and litigated cases as data to analyze the scope and success of intellectual property claims. This project, by contrast, investigates creative culture and innovation outside the limited arena where formal doctrinal intellectual property law is applied or contested. Through face-to-face interviews and document collection, this project develops a richer account of the various ways intellectual property law is manifest (or not) in creative and innovation culture. This project seeks to identify the diverse explanations and justifications of the how and why of creative and innovative activity – beyond the dominant incentive story of IP – in order to better understand the activities’ ties to (or disconnections with) United States intellectual property law.

The primary data from this project comes from nearly 30 semi-structured interviews with artists, scientists and intellectual property professionals, each ranging from one to two hours in length. The artists and scientists include: engineers, laboratory and theoretical scientists, writers involved in print or on-line media, web-designers, filmmakers and videographers, musicians, sculptors, painters, jewelry designers, craftspeople and architects. Some have sought intellectual property protections, others have not. The lawyers are both in-house and firm lawyers whose expertise is intellectual property. The other intellectual property professionals are predominantly licensing professionals or managers who assist in the maintenance of a client’s work or business, including (if relevant) their intellectual property portfolio. I have been working with a semi-structured interview protocol that covers central issues but leaves room for individual variation: a series of open-ended questions that are designed to elicit descriptions, explanations and stories from the interviewees on the relationship between the art and innovations in which they are involved and intellectual property law. I am also collecting workplace documents from the interviewees that are used in the development and harvesting of intellectual property, as well as contracts or agreements where IP had not been otherwise secured. The interviews are on-going. Those completed have been taped and transcribed and are currently being read, analyzed and coded.

The interview transcripts will become a substantial database of language used to describe creative and innovative processes and to describe the origins and methods of creating and maintaining intellectual property on the ground. To analyze the transcripts, codes are developed deductively from preliminary findings and inductively from the emergent language, repetitions, narrative structure and conceptual themes contained in the interviews. In my analysis, I intend to treat each the interview as a text and to evaluate its structural features as a story of law-in-action and of innovation culture. In conducting an inductive, qualitative analysis of these transcripts, I hope to arrive at a systematic understanding of popular legal consciousness regarding intellectual property as well as a “thick description” of the origins and output of creative and inventive processes that may (or may not) become intellectual property.

My intention is to draw from this database of language about intellectual property and invention evidence of the culturally circulating schema, memes, interpretations and understandings of intellectual property law. As a student of literature (I have a Ph.D. in comparative literature) and a scholar of law, I believe that the stories people tell and the language they use to describe their work involving art and science are of import in and of themselves. First, stories are political insofar as they are justificatory units for status quo or change. Second, language is constitutive insofar as the repeated use of words and phrases reify concepts, categories and expectations that structure relationships in our communities. For example, were this project to unearth a variety of explanations for resorting to intellectual property in the fields of arts and sciences (or reasons not to), the dominant story justifying intellectual property protection in formal legal discourse (the incentive story) might be proven less dominant in these informal settings. Further analysis could then attempt to draw connections between the variety of justifications for intellectual property protection (or a lack thereof) in specific arts and science contexts and the efficacy of proposed reforms for intellectual property law to help it achieve its stated goals.

Moreover, inasmuch as the analysis of the transcripts together with any documentation also reveals preferences acted upon by the interviewees through their descriptions of their work and its concrete output, the project may also be able to explore connections or disconnects between popular consciousness and self-reported behavior. This study is therefore intended to both access perceptions and commonly circulating explanations of intellectual property law and track the behaviors of and processes that produced and commercialized the art or science for those who are in the business of making or harnessing creativity and invention, whether or not through legal means. Analysis of the interviews and documents will help compare what the interviewees say about creative and innovative processes and what they actually do (their behavior, process, their output, and their means of making a living). This project will therefore begin to map more systematically the relationship between the incentive story of intellectual property law and the innovation process.

This project is part of an intended larger study of 150 interviews. I have applied for funding to pursue this larger project over the next three years. The funding application is substantially the paper I submitted for this conference. But this summer I intend to write up the preliminary findings of the first 30 interviews (of which 20 have been completed as of this writing). And it is the write up these preliminary interviews (the pilot study), combined with the overall structure of the empirical project, that I hope to present at the Fifth Annual Conference on Empirical Legal Studies at Yale in November.

Download the paper from SSRN at the link.

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