Friday, August 08, 2008

IPSC 2008: IP & Creativity

Does Law Inspire Creativity? An Empirical Analysis of Copyright's Bounty
Raymond Ku
Case Western Reserve University School of Law

He looks at copyright registrations to see if they can give us any evidence of copyright’s importance as an incentive. Though registrations have risen over time, there’s been a drop in serial registrations, which may be an artifact of a rule change allowing registrations to come in a group.

Hypotheses: (1) changes in copyright law change the number of works produced; (2)(a) expanding copyright increases the number of creative works; (2)(b) decreasing protection decreases the number of creative works. The baseline is some copyright protection, and thus the study does not address the on/off question of copyright protection.

He’s studying registrations, not works; the number of works is not known, but he argues that registrations are a good proxy, because registrations were required for any protection at all and are still required for important remedies. (Query: what is a work? He doesn’t seem to mean an email—does he mean a creative work whose creation required some sort of extensive effort or that is part of a generally economically valuable set of works, like a movie or song?)

Variables: population; the economy; law changes (amendments to the Act; significant Supreme Court decisions; registration fee); and technology milestones. Other studies have looked at lower court decisions, but there are statistical challenges to that because of the vast number of decisions. Other difficulties: creating categories that are consistent over time. Possibilities: monographs; performing arts (musical works, dramatic works, pantomimes); sound recordings; motion pictures.

In general, law changes do not always impact creativity. Only 8 law changes affected monographs in a statistically significant fashion. Performing arts and sound recordings: the same thing. The correlation between registrations and law changes is arbitrary, even random; registration is almost entirely driven by population (except for sound recordings), the economy, and registration fees (comment: which might suggest something about creators’ discount rates?). Even the Berne Convention didn’t make a difference to the numbers.

What about scope contraction? In general, scope contraction at least in the form of a pro-fair use decision is associated with increased production. Law changes that increased criminal liability either don’t impact registration or are associated with decreased registration.

Q: Why would criminal liability decrease registrations?

Ku: There may be people creating at the margins of acceptable use who stop. Given how price-sensitive registration is, it’s easy to stop registration. Most creators aren’t sure of the value of their works, though sound recordings are a bit countercyclical; thus the price sensitivity.

Justin Hughes: How long would you expect the lag to be? Statutory change and judicial change may take different times to percolate through the system. Also, some of these no-correlation findings are completely unsurprising: VARA shouldn’t have had any effect on monographs.

Ku: On the lag, they went a while—out to five years, and also taking the changes into account on a continuing basis. On the second point, he wanted to make all the data available, including where you wouldn’t expect. (Though one could make the theoretical argument, pace Glynn Lunney, that increasing the rewards for visual art should shift investment away from monographs if the basic economic theory were true, so we should expect decreased production of monographs, all else being equal. That result seems unlikely because painters are rarely novelists, but that objection is merely to say that creativity is deeply resistant to economic analysis.)

Sag: Dubious about longitudinal analysis at all.

Ku: It’s not enough, but no one’s done this work before and it’s interesting.

Q: We still can’t exclude the possibility that the average “size” of a work—the investment, the return, whatever—has increased even if numbers stay the same.

Ku: Sure, we’re just looking at absolute numbers. This isn’t saying that individuals aren’t motivated by law change—a creator may look and say “95 years! Now I will write the great American novel!” But overall there’s no effect.

Q: This is a different paper, but: the default remedy is an injunction. Is there any difference between pre-1819 and post-, when we added an injunction as a remedy?

Left Brain vs. Right Brain: Conflicting Conceptions of Creativity in Intellectual Property Law
Gregory Mandel
Temple University--Beasley School of Law

The law of joint inventorship for patents is very different than the law of joint authorship for copyright—copyright requires both intent and contribution of independently copyrightable element; patent does not require intent, and can involve contributing only to one claim without independent patentability. The common explanation is that these differences stem from the subject matter. This explanation is oversimplified at best.

(1) These doctrines arose a century apart, and didn’t involve any consideration of subject matter or differences between patent and copyright. (2) If you look at the relevant opinions, they look like gut reactions rather than careful considerations of overall systemic objectives. (3) Other countries have wide variation, which is significant given the substantive harmonization in other countries. So there’s a lot of variability in rights, right to assign/license, the relevance of intent, etc.

If these differences are not based on legal differences, what causes them? Common bias in social attitudes about the creative processes that go into artistic expression v. technological innovation. Artistic creation is commonly perceived as holistic, relational, and internal—springing from the author’s mind. It’s intuitive, subjective, random, synthesizing, and fundamentally personal/individual. Thus copyright law resists joint authorship in the absence of intent and copyrightable contribution. Technical innovation is by contrast viewed as logical, rational, focused on the parts, sequential, analytical, and objective. And because the process proceeds in parts and steps, anyone who participates in a part is entitled to inventor status regardless of intent or contribution to the whole.

Both these views are substantially exaggerated. Invention is dynamic, messy, stochastic, unexpected, produces surprising results: e.g., microwave ovens were invented when a scientist working with vacuum tubes discovered he’d melted a candy bar in his pocket; Post-Its were invented in the attempt to develop a really strong adhesive, not a really weak one. The meaning of ideas is not clear at the beginning, or is different at the end. Problem-finding, as opposed to problem-solving, is particularly a right-brain mode of activity, and thus a particularly creative form of innovation.

And artistic creation often involves linear and externally mandated needs, esp. if we focus on classic areas of joint works: plays, songs, movies. The Mona Lisa and Michelangelo’s David involved significant amounts of planning, arrangement, and step-by-step practice. Success comes from integrating both types of creativity, left and right brain.

International variation can’t be explained by subject matter, but can be explained by different cultural understandings of creativity. Eastern cultures often focus on integration of different things across time: Confucius said, I transmit rather than create. Western cultures tend to idolize single iconic inventors, despite Newton’s remark about standing on the shoulders of giants.

Cocreator law based on mistaken cultural concepts of creativity may fail to promote the goals of copyright and patent.

Joint inventor doctrine: entitled to joint inventorship if contributed to conception of a single claim. Joint inventor gets equal, undivided interest in entire patent; can sue even if the infringer didn’t infringe that claim. Contracts aren’t sufficient; there are a growing number of cases where there was no contract. This discourages joint work, because intent is irrelevant and small contributions won’t be enough. Some inventors won’t know this; others will know to protect themselves; but at the margins, it will discourage collaboration, and that’s a problem because so much research is collaborative. Studies find that extraordinary innovation usually arises from integrating teaching from highly disparate fields.

Copyright is suboptimal too. Because of the intent requirement, potential collaboration is discouraged: the other person may not have the requisite intent. We should incentivize collaboration.

IP has paid insufficient attention to psychological and other perspectives on how to promote creativity. We should look beyond our stereotypes.

Goldman: Can’t we just expect parties to bargain around the entitlements in Coasean fashion?

A: We have lots of evidence that this doesn’t work all that well—lots of failure to bargain. There’s often a dominant inventor/author and a nondominant one, and the incentive isn’t in the right place.

Hughes: You need to talk about the work for hire doctrine, which dominates the majority of the value of collaboratively produced copyrightable works, if not the number. The patent system has draconian rules for getting your attribution wrong, and that is a problem too.

A: You can get a certificate of correction for patent, so it’s not devastating. In general, he wants to look at work for hire and shop rights too.

Sag: It’s hard to justify our joint authorship rules as determining a final allocation of rights. If you think of it as information-forcing, then Larsen in the Rent case looks undesirable as a human being because of his insistence on sole authorship, but at least you knew where you stood with him.

A: There’s no good explanation of why the patent and copyright default rules are so different. So we should ask what the right default rules are; other default rules could also be information-forcing.

Q: Maybe you could look at other kinds of creativity; patent and copyright don’t fully structure creativity, which are also controlled by things like the corporate context.

A: Fair enough. Processes of creativity may be more similar than they are commonly perceived, but that doesn’t make them or their outputs identical. Still, a central goal of IP is to incentivize creativity, so it’s worth asking about.

Q: Does thinking about a “work” and an “invention” help any? Because a patent is more heavily examined, maybe we want to make sure that everyone relevant is present? (I’m not sure why that would be the case.)

A: Possibly—the courts have interpreted joint work to focus on joint authorship, though.

Ordinary Creativity in Patent Law: An Artist Within the Scientist
Amy Landers
University of the Pacific/McGeorge

She looks at the KSR decision, which opens up the question of the creativity of the person of ordinary skill. The PHOSITA has always served as the breakpoint for patent protection. How do you know what sort of creativity a person has to have to do her everyday job? Copyright cases occasionally discuss the process of creating things like photos, offering an artistic judgment standard. Those cases often look at whether the artist’s goal was expression or function, and that question isn’t relevant for patent. We lack a rich vocabulary for discussing scientific creativity. Current judicial language is about education, experience, and competence, rather than creativity as a separate attribute.

Some decisions associate creativity with skill. But intelligence and competence are necessary, but not sufficient to creativity. The psychological literature treats creativity as a separate attribute.

Does patent law in fact have a theory of creativity? There’s been a lot of research on scientific innovation, moving away from a focus on unique genius to the conditions that inspired results. Looking at “the problem to be solved” is of interest—the more definition there is of the problem, the less creativity is needed to solve it. Patent law rewards results and not questions, but we should pay more attention to who defines the problem to be solved.

We also have studies on people who publish more: they have certain characteristics, like associative richness. And we have studies on multiple inventions—the same thing many times invented independently. They suggest that many inventions are inevitable and will come about given appropriate circumstances.

Ordinary creativity should be taken seriously by courts, a number of whom rush by it due to a lack of vocabulary. Conceptual change/pushing back a prior constraint/taking a risk: these are things to look for.

Hughes: Ordinary creativity as the kind of creativity needed to understand a suggestive trademark? I.e., doing so requires creativity, but the kind that basically everyone can exercise. The copyright creativity standard is already incredibly low: it’s anything that’s not produced by a mechanistic, deterministic process.

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