Belonging as intellectual creation.

• Author: Rosenblatt, Betsy

ABSTRACT

This Article considers the question of "what we create when we create." Certainly, one product of creation is "stuff"--inventions, trademarks, and works of authorship. But the same creative process also generates other public, personal, or social goods, such as skills, self-actualization, and community. This project postulates that for some creators, a sense of belonging is a product of intellectual creation that has social value independent of the "stuff" associated with its creation. The project considers social science research establishing a sense of belonging as a fundamental human need and driver of behavior and considers how in creative communities a desire for a sense of belonging encourages both creation and adherence to copying and attribution norms that may differ from formal law. This refines the common narrative "stuff" as the only product of intellectual creation and calls for change in how we think about intellectual property law's exclusivity-based incentive structure.

TABLE OF CONTENTS ABSTRACT 91 TABLE OF CONTENTS 91 I. INTRODUCTION 92 II. WHY DOES BELONGING MATTER? 96 A. Defining Belonging 96 B. Creating and Undermining Belonging 101 III. BELONGING AS INTELLECTUAL AND SOCIAL CREATION 104 IV. WHAT DOES BELONGING HAVE TO DO WITH INTELLECTUAL PROPERTY LAW? 111 A. Intellectual Property Law Can Promote or Undermine Belonging 111 B. Belonging Matters Even in a Stuff-Based World 117 1. Belonging Motivates Individuals to Create More and Better Stuff 117 2. Belonging Promotes Stable Management Regimes for Using, Copying, and Attributing Stuff Within Creative Communities, but Not Among Them 123 V. WHAT CAN IP LEARN FROM STUDYING BELONGING? 125 A. Stuff Isn't Everything 126 B. Money Isn't Everything, Either 128 C. Belonging Suggests When IP Law Is and Is Not Necessary 130 VI. CONCLUSION 132 I. INTRODUCTION

What is a "creation"? The standard narrative of intellectual property law presumes that a "creation" is a discrete, generally physical, thing: an invention. A trademark. A work of authorship. (1) The law presumes that these tangible creations promote progress and facilitate commerce and that giving creators exclusive rights over the copying and use of these tangible creations makes the act of creating them appealing and financially viable. (2)

But what if our definition of "creation" were not so limited? Of course, creators make "stuff" (3)--inventions, marks, works of authorship--but they may also create any number of other things that intellectual property law does not recognize as "creations." Creators may "create" their own skills. (4) They may "create" their own personalities and identities. (5) They may "create" communities. (6) These creations may be at least as valuable as money to the creators or to society at large, but they are not the sorts of things that intellectual property law strives to promote. Intellectual property law pays little attention to whether a musician feels like a valued member of an artistic community, whether an engineer feels respected and appreciated, or whether a media fan finds a sense of self by creating derivative works.

But why not? The idea of progress could easily embrace ideas of human flourishing that may be harder to measure than the quantity (or even the quality) of inventions, marks, and works of authorship. Just because these notions are less countable does not make them less important. (7) This Article suggests that one possible creation of intellectual endeavor is a sense of belonging, and that belonging is worth considering in the context of intellectual property law and policy.

Most accounts of intellectual property law start from the premise of justifying and optimizing exclusivity. (8) Only a few qualitative studies and explorations of intellectual property theory consider non-exclusivity benefits of creating, such as developing skills, self-determination, or self-actualization. (9) Even recent studies on the value of the public domain considered only the public domain's economic value, not its value to public discourse or to creators' well-being. (10) Although many scholars have observed that exclusivity and creative incentives are not inextricably linked, those scholars have still tended to approach questions of creation and innovation from a stuff-based standpoint. (11) Perhaps this is because, as Professor William W. Fisher has noted, analyses of human flourishing in relation to intellectual property tend to "repudiate the principle central to both the dominant form of economic analysis and to the dominant form of contemporary liberalism: that the state ought to remain neutral concerning alternative conceptions of the good." (12) It may be difficult to incorporate considerations of human flourishing into typical intellectual property analyses, but I contend that difficulty makes the endeavor all the more important.

The animating principle behind copyright and patent law is the promotion of "progress." (13) While the prevailing constitutional interpretation of "progress" focuses exclusively on the production and advancement of material goods, many authors and inventors view "progress" as having as much to do with community as with stuff. For example, in an empirical study by intellectual property law scholar Jessica Silbey, many artists saw their mission as contributing to their communities in ways that "helped, that brought pleasure, [and] that connected people." (14) This connection between people--separate from the objects created--was part of the artists' vision of "progress." (15) Silbey's study also revealed that for many creators and innovators, progress requires not only that they are able to produce goods, but also that those goods are available to the community that can benefit from them. (16) For these individuals, formal intellectual property law can be both over- and underinclusive: it protects new works and inventions regardless of whether they provide public benefit, while creating unnecessary or cumbersome barriers to their use. (17)

In fact, community often overshadows stuff in creators' own descriptions of their creative endeavors. For example, music students report that a "sense of belonging" to a community is "the chief[,] and for some, the only, reason they participate in music program[s]." (18) Woodworkers in community programs valued the sense of belonging they received from mentoring and working with others, which overshadowed the physical artifacts of their participation. (19) Fans describe participating in fanwork-creating communities as a sort of "savior," providing them with community, empowerment, and an enhanced sense of self. (20) Professional artists report a sense of belonging as a key aspect of their creative endeavors that drives them not only to create art, but also to engage in activities that support their artistic communities outside the context of capitalist market transactions. (21)

Furthermore, stuff-focused accounts do little to explain certain common aspects of creator and innovator behavior. Why do "starving artists," tinkerers, and fans create and invent, even when they do not ever intend to pursue financial benefit for doing so? Why do some creators and innovators give their works or inventions away for free or decide not to rely on intellectual property exclusivity? Why do some creators give attribution when the law does not require it or refrain from copying even when the law would permit it?

I suggest that the concept of belonging reveals some of these answers. Belonging is a fundamental need, and the desire to belong is one of the most powerful drivers of human behavior. (22) Empirical evidence indicates that a sense of belonging is frequently a product of creative endeavors that rivals "stuff" in its importance to creators and rivals exclusivity as an incentive to create. (23) Belonging maintains a unique, complicated, and inextricable relationship with the concept of "exclusivity," which is the principal tool of intellectual property law. (24) By examining belonging--the conditions that promote and undermine it, its relationship with intellectual creation, and its relationship with exclusivity--we can learn much about the relationship between intellectual property law and creative behavior. These lessons can help guide intellectual law and policy in the direction of promoting human flourishing. Belonging thus adds an important consideration to intellectual property policy and theory.

Part II of this Article defines belonging and identifies conditions that are conducive or hostile to the creation of a sense of belonging. Part III explains how belonging is a product of creative endeavors that is different from, but synergistic with, tangible products of creation. Part IV connects belonging with intellectual property law, first explaining how belonging can be incentivized or discouraged just as tangible creations can, and second explaining why belonging matters even in the context of promoting the creation of "stuff." Finally, Part V identifies some lessons that intellectual property law and policy might draw from examining belonging.

2. WHY DOES BELONGING MATTER?

   Before considering belonging in the context of intellectual property law or policy, it first helps to understand belonging in its own context. This Article therefore begins by defining belonging, explaining why it is important, and exploring the conditions that promote and undermine individuals' sense of belonging.

   1. Defining Belonging

      Belonging is a "personal and contextually-mediated" emotion that people experience when they feel (a) "secure, accepted, included, valued, and respected" by a group; (b) "connected [] or integral to the group"; and (c) that their "values are in harmony" with the group. (25) This experience is a basic, and possibly innate, human need. (26) In his seminal work describing a hierarchy of human needs, Maslow ranked the need for belonging below only physiological survival and the need...