The Eureka Myth: Confusion about creativity and our flawed IP system.

How Confusion About Creativity Sustains a Flawed Copyright System

How Confusion About Creativity Sustains a Flawed Copyright System

The citizen’s guide to the future.
Jan. 23 2015 9:36 AM
FROM SLATE, NEW AMERICA, AND ASU

The Eureka Myth

How misunderstandings about creativity sustain a flawed copyright system.

Archimedes Siracus.
Was Archimedes inspired by patent law to make his screw?

Line engraving by Remondini/Wellcome Library/Public Domain

When I asked a successful artist not too long ago about her early work as a painter and her professional goals, she told me, “ I 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.”

Meanwhile, a patent lawyer I talked to about innovative work in medicine said, “[Y]ou learn from other people, and then … the frontiers of science are pushed back … gradually through similar antlike persistence by scientists.”

Paintings are puppies? Scientific inventors are ants? In the context of a two-hour interview, I understood the puppy metaphor to describe intense affection and concern. The ant analogy underscores the value of hard work and collaboration. Both explain the value of and mechanism by which creative and innovative work happen. And both have precious little to do with intellectual property law and its goal of incentivizing the production and dissemination of art and science.

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Sure, IP rights can help artists, scientists, and engineers earn a living. And they (like all of us) need money to live and to continue working. But the exclusive rights that IP provides to inventors, artists, and writers that would enable them to charge monopoly prices for their work did not feature centrally in the inspirational stories I heard creators and innovators tell about their everyday work.

Why do we grant intellectual property rights for much of the art and science that creators and innovators produce? Copyright and patent laws are enacted by Congress to “promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The traditional story goes like this: Property-like exclusivity incentivizes creative and innovative works such as paintings, poems, cellphones, and medical devices. Without IP, society would suffer—no prospective writers or inventors would invest their time in creating anything special without the ability to control how their work is used.

That may sound perfectly reasonable in a world where technology has made copying easier and a lack of control appears to be growing. But this property story makes sense only if we ignore the many other explanations and mechanisms for creative or innovative pursuits. Reciting “exclusivity is necessary” threatens and is undermined by the prolific and vital creativity and innovation that go on over the Internet, in laboratories, and in studios. The “exclusivity is necessary” mantra, to the exclusion of other explanations, has justified the protection of agricultural monopolies over seeds that farmers have historically shared and reharvested ; it has justified the monopoly on cancer-screening tests, raising their prices and restricting access; and it has justified the elongation of the copyright term from the initial 14 years in 1790 to “life of the author plus 70 years” today. It further enables frivolous lawsuits by patent holders (sometimes called trolls) who charge money for access to IP but who did not originate the invention and do not make it or sell it to the public. These lawsuits raise the costs of doing business for those organizations and people who are busy making and selling their creations and inventions to consumers.

While writing my new book, The Eureka Myth, I sought to learn from artists, scientists, and engineers why and how they create and innovate. I wanted to hear from them whether the promise of exclusivity over their work was an important factor in beginning or completing their projects. I interviewed more than 50 people in IP-rich fields and listened to the accounts they provided: How do they get their work done, what motivates them, what helps them work, and what hinders them? In the hundreds of hours of interviews, I rarely heard talk about intellectual property rights.* They didn’t mention exclusivity and recouping investment of time and money through anti-copying laws such as copyright or patent. They talked instead about

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  • Needing time and space to do their work
  • The rhythm and flow of everyday work facilitating creative progress and innovation
  • How developing an appreciative audience for their work and collaborating with diverse professionals in their field motivate them and make their work better
  • Professional reputation and autonomy being more important than money to their professional satisfaction.

Artists and scientists care about working. They want to minimize the risk of reputational injury and work stoppage. They care about being valued and recognized for the hard work they do. They care about getting better at their work, sharing their work, and earning a living from their work.

IP seems useful sometimes: when it can be harnessed to keep a person’s reputation intact or when the IP can be licensed for a value that accurately reflects the hard work the artist or scientist invested. But rarely does either scenario arise. The Supreme Court has largely foreclosed the use of IP to protect artistic reputation or attribution. In the 2003 case of Dastar v. Twentieth Century Fox, the court held that trademark law cannot be used to assert or correct attribution claims to copyrighted works in the public domain. (That case has since been extended by federal courts of appeals to works still under copyright.) And the Supreme Court has ruled that labor is irrelevant to intellectual property protection. Moreover, because so much intellectual property is owned by employers and companies rather than individuals through the work-for-hire doctrine and routine assignments, everyday artists and scientists do not experience intellectual property as theirs. To the contrary, individual creators have begun to donate inventions, agree to patent pledges, or pool creative content through open licenses for the use of many in order to prevent their obstructive lockup by some companies and aggregators.

Skeptics will say companies need intellectual property to provide an environment in which creative and innovative work is done and through which individuals are provided time and space to do their thing. According to this story, intellectual property is a corporate asset against which firms hedge their risk of losing their investment of money and effort. And that is partially true, but only partially. Most corporate executives speak about their work in their company—and about the company itself—the same way artists and scientists talk about their own creative and innovative labor: They do it for the personal and social challenge, to solve problems, and because it is “who they are.” And when they describe how and why their company succeeds, it is not largely or solely because of intellectual property. It is because of loyalty, relationships, reputation, a copacetic workplace, the excellence of their products and services, first-mover advantage, private agreements, an attentive and understandable market, and a constantly evolving offering of complementary products and services built around identifiable marketplace needs or desires.

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Suggesting that companies and businesses need intellectual property—that corporate wealth and business health require exclusivity over their inventions and creations—grossly overstates, if not misstates, the facts. The Eureka Myth describes how businesses stay afloat by relying on diverse strategies that are largely orthogonal to (not owing to) intellectual property. Businesses thrive without asserting their IP and rarely exploit it to the extent of the law. Indeed, most individuals and businesses underenforce their intellectual property rights and yet continue to succeed, if not thrive, in a competitive marketplace. Why, then, do IP laws keep getting broader and longer? Why has copyright law grown in duration from 14 years in 1790 to life of the author plus 70 years today? Why have the exemptions to patent infringement, largely relied upon to conduct experimental research, been disappearing? Why, when most people and companies do not rely on IP to the extent the law allows and demonstrate through their actions that IP is not necessary to progress science or arts, do IP laws and IP law reformers continue to argue for more and stronger IP laws?

My book explains the durability of the myth of IP’s necessity. First, we prefer simple stories to complex ones, one-line theories to paragraph- or page-long explanations, however misleading or insincere the simple story may be. It is easier to say “IP is necessary to promote investment in art and science” rather than “the motives and mechanisms for making art and science are diverse.” Second, money matters to everyone, some just a little and some a lot. It is objectively necessary. “Loyalty relationships,” “autonomy,” “teamwork,” “being challenged,” and “positive reputation” are values that undeniably matter, but they also seem subjective, personal, and idiosyncratic. “Working for money” (and protecting work through property interests) is perceived to be an objective common ground, but it is not remotely the whole story. While justifying work with the need for money is reasonable, money is also a means to achieve common goals fundamental to our happiness but that are unfortunately left unarticulated.

It is time to start talking about these other common ends. In the debate over intellectual property reform, global labor practices, corporate restructuring, and the regulations that should govern companies and their employees, we need to be clear about the values about which creators and innovators truly care. Only then will we be on the path to promoting the “progress” the U.S. Constitution emphasizes.

This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.

*Correction, Jan. 23, 2015: This article originally misstated that the author conducted thousands of hours of interviews for her research. It was hundreds of hours.