Harvesting intellectual property: inspired beginnings and "work-makes-work," two stages in the creative processes of artists and innovators.

• Author: Silbey, Jessica
• Position: Creativity and the Law

This Article is part of a larger empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents, and business partners. The book-length project involves the collecting and analysis of stories from artists, scientists, and engineers about how and why they create and innovate. It also collects stories from their employers, business partners, managers, and lawyers about their role in facilitating the process of creating and innovating. The book's aim is to make sense of the intersection between intellectual property law and creative and innovative activity, specifically to discern how intellectual property intervenes in the careers of the artists and scientists. This Article is an overview of the first two chapters of the book. The first is entitled "Inspired Beginnings" and explains how people describe the embarkation on a life's work in art and science mostly as a function of intrinsic or serendipitous forces. The second chapter is entitled "The Work of Craft: Work Makes Work" and explores the varied ways the interviewees describe their daily work in terms of the pleasure of sitting in a defined space (lab, studio, study) and focusing on the details of a project. This second chapter also discusses how work is described in terms of natural metaphors (e.g., harvesting or fishing) and the possible ramifications of this rhetoric for intellectual property law and policy.

INTRODUCTION I. CONTEXT: THE PLACE OF THIS PROJECT II. PROJECT DESIGN III. PROJECT FINDINGS A. Inspired Beginnings 1. Natural Forces and Serendipity 2. Urgency and Play B. The Work of Craft: Work-Makes-Work 1. Time/Space 2. Hard Work 3. Harvesting Tangible Property IV. IP's PLACE: IMPLICATIONS AND CONCLUSIONS A. Tentative Implications B. Conclusions APPENDIX A: INTERVIEW DATA SAMPLING APPENDIX B: DATA ANALYSIS INTRODUCTION

This Article is part of a larger empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents and business partners. The book-length project involves the collecting and analysis of stories from artists, scientists and engineers about how and why they create and innovate. It also collects stories from employers, business partners, managers and lawyers about their role in facilitating the process of creating and innovating. The book's aim is to make sense of the intersection between intellectual property law and creative and innovative activity. Specifically, its goal is to unpack the motives behind creative and innovative activity and to discern how intellectual property intervenes in the careers of the artists and scientists.

This Article is an overview of the first two chapters of the book. The first chapter is entitled "Inspired Beginnings" and explains how people describe the embarkation on a life's work in art and science mostly as a function of intrinsic or serendipitous forces. The second chapter is entitled "The Work of Craft: Work Makes Work" and explores the varied ways the interviewees describe their daily work in terms of the pleasure of working in a defined space (a lab, studio, or study) and hewing their project, shaping it. This chapter also discusses how work is described in terms of natural metaphors (harvesting or fishing) and the possible ramifications of this rhetoric for intellectual property law and policy.

Part I of this Article situates this study in the context of other empirical projects that investigate intellectual property law and practice. Part II discusses the project design in more detail. And Part III explores the transcripts, sharing the words and stories of those interviewed for what they say about beginnings and daily work of creation and innovation in the arts and sciences. Specifically, Part III imposes certain structures on the interviews that I see emerging after close attention to language patterns and narrative repetitions within the transcripts themselves. In Part III and in Part IV, I discuss some modest implications this empirical study might have for intellectual property law and policy.

1. CONTEXT: THE PLACE OF THIS PROJECT

   Although incentivizing the "progress of science and the useful arts" has been the putative goal of intellectual property law (IP) since the United States' constitutional beginnings, more than two hundred years later, we remain unsure whether IP protection works as we hope. (1) There are, in fact, few empirical studies describing how and why artists and scientists do what they do and whether or how the law has a role in their activities. (2)

   The empirical scholarship on IP follows two tracks, loosely defined. One focuses on whether protecting IP impedes innovation rather than promotes it. These scholars usually focus on legal hurdles to output. (3) They debate the existence and effect of the fabled "anticommons," (4) measuring its effect in patent law generally through filed cases, (5) citation indexes in biomedical fields specifically, (6) and in the manner of follow-on user innovation in manufacturing. (7) Some scholars also ask--but do not really measure--the effect of an anti-commons in artistic communities, as in the music and film industries in our digital era. (8)

   Some of the research, particularly in the communities where copyright protection dominates, tends to be less empirical and more anecdotal, grounded in policy or philosophy debates rather than systematic qualitative or quantitative analysis of innovative practices. (9) Many of the prominent legal scholars in this area debate fundamental questions about the importance of the public domain for self-expression and continued innovation and focus less on demonstrating with empirical methods the efficacy of the social welfare function of intellectual property systems. (10) These policy debates have been influential in structuring legal proposals, but more empirical work is needed to explain the asserted common sense behind these proposals. (11) Especially in the copyright realm where the legislation has been notoriously piece-meal and special-interest driven, (12) data on the manner in which copyright law is imagined and harnessed (or not) to spur creativity and recoup its costs seems of paramount importance to furthering the policy debate. This study will begin to fill this empirical gap.

   For the most part, these studies explain that intellectual property law is not working as expected: the promise of intellectual property protection does not necessarily lead to more or efficient investment in innovation. The present study builds on the existing research to investigate this finding about the limits of intellectual property law. It does so, however, more directly from the perspective of those professionals working in creative fields and, if available, towards intellectual property protection. Notably, my research looks at the role of intellectual property law before it manifests as litigated cases. It focuses on perceptions of IP by creative and innovative communities outside the law's formal reach. Learning how the intellectual property law is perceived and applied before conflict arises may provide a new insight into the causes of the law's reported successes and failures.

   The other branch of empirical IP scholarship investigates the informal norm systems that develop in the absence, or instead, of formal and public IP law. Some of these scholars focus on specific community norms that establish nonpecuniary (or nonmarket) incentives to innovate, for example in communities' aspirations to advance society and knowledge generally, (13) satisfy curiosity (14) or build reputation. (15) Other scholars delve deeply into specific communities to ask whether community norms are an effective substitute for intellectual property where IP protection is unavailable or ineffective. (16) In these case studies, scholars ask whether members of the community experience its informal norms as providing adequate protection for the value of their creations, for whatever reason they want to protect it: monetary, reputation, or otherwise. The current project supplements these studies by asking a prior question. Rather than evaluating the structure and efficacy of some form of IP regime (whether formal or normative), this study focuses first on the early stages of the creative process and investigates the impulse to innovate, seeking to uncover its relationship, if any, to the creators' understanding of the ability or inability to protect (and possibly commercialize) their work.

   Some IP scholars suggest that creativity and innovation--whether or not tied to IP protection--is intimately connected with notions of personhood: individualism, self-expression, and freedom. (17) This body of work has attempted to shift the IP debate (or at least diversify it) from law's economic justification to its humanistic role as a mechanism for self-fulfillment and community sustainability. Most of this work is theoretical or anecdotal. Understandably, therefore, there is need for more systematic analyses of these creative communities and innovative organizations, of the resources and tools required for their activities, and of the variety of methods used to sustain them.

   This research project aims to be one such empirically grounded analysis. Specifically, this project investigates: (1) the expressed relationships between creativity and innovation and enforceable entitlements, which may inform us as to (2) whether or why the individuals and organizations protect through IP the value created, and when correlated to behavior, (3) the actual or enacted relationship between creativity and innovation and IP.

   There are some ground breaking studies by psychologists and social scientists on the nature of creativity and innovation that inform this project. Studies such as Mihaly Csikszentmihalyi's Creativity: Flow and the Psychology of Discovery and Innovation and Howard Gardner's Creating Minds, explore creative personalities and the evaluative...