The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property.

• Author: Chien, Colleen V.
• Position: Book review

The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property. By Jessica Silbey. California: Stanford University Press. 2015. Pp. xi, 285. Cloth, $85; paper, $25.95.

INTRODUCTION

I read Jessica Silbey's book, The Eureka Myth: Creators, Inventors, and Everyday Intellectual Property, (1) while I was on sabbatical. The word sabbatical, like the word Sabbath, (2) conjures a sense of rest and a break from the day-to-day rhythms of commerce, transactions, and, for me as a professor, teaching. My husband was on sabbatical as well, and we and our two young sons spent much of the summer in the house in Belgium where my husband grew up, enjoying late sunsets, visiting with friends, and biking through idyllic pasturelands. Summer is supposed to be a carefree time, and for me it was--at times. But not until my sons were asleep or away at school or child care programs did I have the time and space to rest, reflect, and refocus on my writing projects, including this Review--to get the work done.

In the theater of the courtroom or the rough and tumble arena of intellectual property policymaking, the day-to-day lives of creators are rarely presented. We often instead see one-dimensional vignettes, for example, "the new artist or band that has just released their [sic] first single and will not be paid for its success," described on Taylor Swift's Tumblr last summer when she initially withdrew from Apple's music streaming service. (3) While instructive, this description leaves out that Swift and other artists have long relied on "free play" mediums like radio and, more recently, YouTube to develop, not cannibalize, their audiences and followers. (4) Such accounts ignore both context and the complex relationship between what creators want and need and what intellectual property provides.

These are a few of the reasons that Jessica Silbey's book, The Eureka Myth, is both refreshing and important. In it, she draws from over fifty interviews, completed over half a decade, with an array of creative professionals, including filmmakers, photographers, sculptors, journalists, novelists, musicians, composers, hardware and software engineers, biologists, publishers, computer scientists, and business executives. (5) Silbey asked them about their work, the challenges they faced, why and how they overcame professional obstacles, joys they experienced, and what was important to them. And at the end of each interview, she asked them what they thought about intellectual property (pp. 291-92). The resulting insights are as true as they are original.

Take the experiences of Joan, (6) an internationally known public artist whose statements appear throughout the book. Joan is a woman who "wanted to make paintings. I wanted to publish them. But I didn't want to own them.... It's like having a litter of puppies and you [find] a good home for each one of them" (p. 1; omission and alteration in original). Having to maintain, store, and find "good homes" for artistic works is a practical burden--one that, unless you are a visual artist, may not be the first thing that comes to mind. (7) Though placing puppies is a far cry from the fundamental purposes of intellectual property--which according to the Supreme Court include "inducing dissemination! ]as opposed to creation" (8)--both creators and legal systems want to ensure the same end. Both want works to be created and disseminated to their audiences rather than kept in the minds or storage spaces of creative people.

But can intellectual property help achieve this end? Does it, on net, do so? And how might intellectual property be changed to advance the shared interest of creators and policymakers in the creation and dissemination of creative works?

The Eureka Myth provides authentic, if not always straightforward, answers to these questions. And in presenting the perspective of creators, it provides much more--namely, accounts of how factors like serendipity, circumstance, and hard work really matter. It shows glimpses of the importance to creators of space, time, and the freedom to work on projects that one believes are worthwhile. It does so in an age in which declines in the cost of communication, content discovery, and replication (9) are presenting creators with many more pathways, users, and uses in disseminating their work, even as intellectual property's default is to exclude them.

The result is a distillation of what, in their own words, creators want and the degree to which intellectual property does or does not align with these desires. While many commentators purport to represent the interests of artists and inventors, the creators that Silbey interviews speak for themselves throughout the book. Their experiences endow Silbey's observations and findings with an authenticity that other accounts lack. In the paragraphs that follow I draw from them and describe how in many cases they challenge, and in some others they support, traditional notions of intellectual property. Extending from this base, I bring other voices into the conversation--including related narratives, historical and modern empirical studies, and my own research--to consider what an intellectual property system keenly attuned to the needs of creators might look like, while recognizing that creators are not the only important constituency the intellectual property system needs to care about.

What creators want isn't all that surprising: freedom, credit, and relationships with their audiences and customers. What intellectual property offers is also fairly straightforward: the right to exclude, including the right to pursue legal actions against others for copying, misappropriating, or treading on one's work. These are not the same, as Chapter 3, entitled "Making Do with a Mismatch" recounts in detail, but the degree of match varies widely. In some of the cases Silbey reviews, intellectual property is perceived to be critical to support a protected space in which research and creative agendas can thrive (p. 217). In other contexts, intellectual property is just one of many factors that matter to creators; other times it is entirely beside the point. (10) In yet other cases, intellectual property sends the wrong message ("go away") and actually undermines creators by, for example, deterring the audiences they are trying to reach or Pareto suboptimally discouraging paid or free uses that would benefit both licensee and licensor. (11) Across these scenarios, what creators seek is an accurate expression of their desires. They seek the ability to deploy intellectual property flexibly to achieve their desired ends of complete exclusion, complete inclusion, and everything in between. They want choice, and they want control.

In order to support creators' desires for freedom, credit, and audiences during a time of declining communication, marketing, production, and reproduction costs, policymakers could consider reorienting intellectual property to better support goals other than exclusion. Making it easier for potential sellers and buyers of works to find each other, building more reliability into existing contract-based sharing regimes, and making paid and unpaid sharing easier--including through orphan-works reform and supporting licensing, defensive patenting, and humanitarian or public-domain dedication, as others have suggested--could go far to enhance creators' reputations and audiences' freedom to play and ability to get paid. Encouraging users and others to give accurate credit to creators--by taking attribution into account when copyright is enforced, enforcing commitments to attribute, and codifying best practices in attribution, as others have considered--would create a better alignment between U.S. intellectual property law and the expressive and personhood desires of creators and their audiences. Below I describe what The Eureka Myth and related works say about what creators want, and the implications of those desires for intellectual property.

1. WHAT CREATORS WANT

   The primary purpose of intellectual property law is to motivate the production and dissemination of artistic, scientific, and technological works. (12) But to induce authors and inventors to take such steps requires an understanding of what motivates them. The first part of this essay distills the desires expressed by Silbey's subjects. Across a broad swath of fields, settings, and creative endeavors, creators expressed three desires: freedom, credit, and audiences.

   1. Freedom

      Freedom is essential to the creative process. Below, I describe how three freedoms--freedom to do meaningful work; freedom to play, borrow, and build upon; and freedom through revenue generation--and their pursuit define the substance and process of creation.

      1. Freedom to Do Meaningful Work

         "Autonomy, mastery, and purpose" motivate creative people to do their best work, according to Daniel Pink's well-known book, Drive. (13) Among Silbey's subjects, the freedom they feel while they work is the "common defining pleasure." Common themes include the freedom to play, the freedom to have fun, and the freedom to make things (p. 41). Freedom also means autonomy and control, including control over one's schedule and control over the content of what one works on.

         Many of Silbey's subjects value freedom and flexibility more than money and are willing to take less pay (though, notably, not no pay) for more freedom (p. 44). As Thomas, a software engineer and entrepreneur, said:

         The one thing that my job has always given me is a lot of flexibility and a lot of room. And I appreciated that a lot, because I could do pretty much anything I wanted, and I could pursue any projects that I wanted. So that, at that time, meant more to me than additional money, (p. 43) Programs at well-run companies seek to free up the time of their employees by offering time-saving perks like on-site fitness centers, childcare, and subsidized food. (14) Similarly, the nature of the creative process...