Creativity without Law

Challenging the Assumptions of Intellectual Property

Kate Darling, Aaron Perzanowski

• Publisher: NYU Press
• Year: 2017
• ISBN:
  9781479807406
• Topic: Droit
• Subtopic: Droit de la propriété intellectuelle

Behind the scenes of the many artists and innovators flourishing beyond the bounds of intellectual property laws Intellectual property law, or IP law, is based on certain assumptions about creative behavior. The case for regulation assumes that creators have a fundamental legal right to prevent copying, and without this right they will under-invest in new work. But this premise fails to fully capture the reality of creative production. It ignores the range of powerful non-economic motivations that compel creativity, and it overlooks the capacity of creative industries for self-governance and innovative social and market responses to appropriation.
This book reveals the on-the-ground practices of a range of creators and innovators. In doing so, it challenges intellectual property orthodoxy by showing that incentives for creative production often exist in the absence of, or in disregard for, formal legal protections. Instead, these communities rely on evolving social norms and market responses—sensitive to their particular cultural, competitive, and technological circumstances—to ensure creative incentives. From tattoo artists to medical researchers, Nigerian filmmakers to roller derby players, the communities illustrated in this book demonstrate that creativity can thrive without legal incentives, and perhaps more strikingly, that some creative communities prefer, and thrive, in environments defined by self-regulation rather than legal rules. Beyond their value as descriptions of specific industries and communities, the accounts collected here help to ground debates over IP policy in the empirical realities of the creative process. Their parallels and divergences also highlight the value of rules that are sensitive to the unique mix of conditions and motivations of particular industries and communities, rather than the monoculture of uniform regulation of the current IP system.

Part I

Cuisine and Curatives

1

Norms-Based Intellectual Property Systems

The Case of French Chefs

Emmanuelle Fauchart and Eric von Hippel

When one thinks of intellectual property (IP) rights, one tends to think of rights encoded in law like patent grants, copyright, trade secrecy, and trademarks. In these law-based IP systems, detailed bodies of legislation and case law spell out the rights an owner can claim to specific types of IP and the procedures by which these rights can be claimed. The law of contracts then specifies how the rights can be licensed and bought or sold. Claimed violations of IP rights and contracts can be adjudicated and compensation determined via private legal actions in the courts.

In this chapter we propose that norms-based IP systems also exist and are important in at least some fields. Norms-based IP systems, as we define them, function within a group to provide group members with IP rights based on social norms only. Such systems must provide the basic functions of law-based IP systems, but may provide these by different means. Thus, both types of IP systems must grant innovators valuable monopoly rights over their innovations. Both must also enforce these rights, but may use different means to do so. In the case of law-based systems, for example, possible IP violations are adjudicated by courts. Court-mandated sanctions for confirmed violations then may include financial payments and prohibitions of further violations. In the case of norms-based systems, possible IP violations are assessed by informal community consensus. Sanctions for confirmed violations are applied by community members and may include shaming, loss of status within the community, and reduced future access to valuable community resources such as information.

Our research is related to and draws on work by laws and norms scholars who have explored the roles of laws relative to norms in several arenas.1 We also build on work by Merges related to private IP systems.2 Our major contribution in this chapter is to provide an existence proof for norms-based IP systems—a documentation of a present-day IP system based solely on norms. We do this by exploring how accomplished French chefs currently protect the new recipes they develop. Accomplished chefs consider their recipes to be a very valuable form of IP. After all, professional reputations and customer patronage at restaurants can be built around successful recipes. At the same time, recipes are not a form of innovation that is effectively covered by current law-based IP systems. Recipes are rarely patentable, and combinations of ingredients cannot be copyrighted. Legal protections are potentially available via trade secrecy laws, but, as we will see, chefs very seldom use them.

In brief overview, we find that an IP system based on implicit social norms and offering functionality quite similar to law-based systems does operate among accomplished French chefs. Via grounded research, we identify three strong implicit social norms held by all chefs we interviewed. First, a chef must not copy another chef’s recipe innovation exactly. This norm has a very important role in creating a norms-based analog to important functions of law-based IP systems. The functional effect is analogous to patenting in that the community acknowledges the right of a recipe inventor to exclude others from practicing his invention, even if all the information required to do so is publicly available. The effect is also analogous to copyright in its regulation of the right to copy a particular “form of material expression” of an idea.

A second norm mandates that, if a chef reveals recipe-related secret information to a colleague, that chef must not pass on the information to others without permission. This norm gives a chef a property right similar to that attainable via a contract under trade secrecy law: Protected by this norm, a chef can selectively reveal his or her secret information to another without fearing that as a result, the information will become generally known. A third norm is that colleagues must credit developers of significant recipes as the authors of that information. This gives an additional property right to a chef who may choose to selectively or publicly reveal information about his innovation without jeopardizing the valuable related property right of acknowledged authorship.

Via quantitative research, we next show that accomplished chefs are significantly more likely to deny requested information to colleagues whom they believe may violate the three social norms just described. This selective denial of information is behavioral evidence that a functioning norms-based IP system exists: It shows that three implicit norms that together offer functionality similar to that of law-based IP systems are being enforced in the community we studied. As one accomplished chef said, “If another chef copies a recipe exactly we are very furious; we will not talk to this chef anymore, and we won’t communicate information to him in the future.” We conclude that information not afforded the protection of IP law may nonetheless be controlled by an effective IP regime based entirely on implicit norms.

Our findings introduce the likelihood that norms-based and law-based IP systems are both functioning in the world today. The potential effects of norms-based IP systems will add a new dimension to current scholarly research and debate on the economics of IP systems. At present, much of that debate involves the possibility that extant law-based IP systems may be constraining rather than supporting innovative progress.3 Modification or elimination of these systems is sometimes proposed, with the implicit assumption that the law-based IP systems under discussion are the only ones at issue. Our findings indicate that, in at least some fields, the situation is different. Modification or elimination of law-based IP coverage of a field may simply reveal, or even induce communities to newly create, a norms-based IP protection system in that field.

As we learn more about norms-based systems, we will learn how each type can be most usefully understood and applied. We will then be in a position to more deeply explore how mixed norms and law-based systems can best function and serve the intended social and private purposes of creating, defending, and diffusing IP.

In this chapter, we first review social norms, law-based IP rights, and norms-based rights systems. Then, we discuss the methods used in our case study and present our grounded research findings on the recipe hiding, trading, and revealing choices made by French chefs. We conclude that norms-based IP systems exist, can be effective, and should be further explored.

Social Norms

Social norms are pervasive and powerful structural characteristics of groups that summarize and simplify group influence processes. They are enforced by a group among its members and generally are developed only for behaviors that are viewed as important by most group members.4 Social norms can be advantageous for groups.5 Social norms have traditionally been viewed by sociologists as rarely written down or explicitly discussed.6 In such cases, evidence that a norm is in place can be seen if any departure of real behavior from the norm is followed by some punishment.7 Social norms can deal with matters that both do and do not have important economic consequences for the group.8 For example, workplace norms such as output restrictions directly address the economic concerns of a group. Thus, a “rate buster” who produces significantly more than the average worker in a production group could induce management to lower piece-rate pay for all workers in the group—a matter with significant economic implications for those workers. In contrast, social norms regulating such matters as mode of dress, manners at the table, and so forth may but need not have important economic significance for group members.

Norms are enforceable when groups control stimuli that are valued (or disvalued) by the target person. The more an individual has a personal need for a social reward controlled by the group, the more he or she conforms. Group members who do not need or care about such social rewards (e.g., very high-status members or very low-status members not committed to remaining in the group) often conform less than other group members.9

Bendor and Swistak use evolutionary game theory to test the conditions under which social norms are stable.10 The stability of a social norm, they find, is maintained when all are treated as supporting the norm unless they actually transgress—the “nice” element of a “nice but retaliatory” strategy. However, all participants must punish one who does transgress and also punish those who do not join in punishing him—the “retaliatory” element of the strategy. In other words, if a social norm is violated, the obligation to impose punishment must not be restricted to those who were hurt by the initial transgression; the obligation must be extended to third parties if the norm is to remain stable. The “if you are not my friend then you are my foe” element of the nice but retaliatory strategy ensures that it is in the private interest of third parties to participate in punishment of transgressions. Although participation may involve a cost to these parties, they must participate or face the presumably greater cost of being punished, too. The net result—assuming that the transgression is not engaged in by too many simultaneously—is that a norm remains stable.

Law-Based IP Rights Systems

There are three distinct types of law-based IP rights systems in most countries: the patent grant, the copyright, and the right to protect trade secrets. Each of these systems covers different categories of IP and has diffe...