Footnote:
Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments July 18, 2023 erstellt
Description:
Conventional wisdom has it that intellectual property is essential for drawing talent and effort into creative endeavour of various kinds. Without it, it is thought, creative talent would be deployed elsewhere, in venues with the prospect of proper reward. Does intellectual property suitably fulfil this noble mission? Is it indispensable in that role? In the course of history, a variety of techniques have been deployed with a view to creating such a stimulus: first-mover advantage, secret, favouritism by the powerful, employment contracts, pensions, state procurement contracts, state subsidies, sponsorships, lotteries, prizes, to name just a few. What are the potential and the drawbacks of each of these means? Recently, we have witnessed the appearance of a field of study labelled “IP without IP” (open content, open science, open source, creative commons), looking at a host of fields where creative effort appears to thrive in spite of the absence of IP. Under what conditions will that work?The article provides an overview of empirical research over the past half-century aimed at answering these questions. It points to many areas where “IP without IP” is working well, yet outlines the ongoing debate on the limits of the formula. It then discusses research on prizes and supply contracts as stimuli of creativity as against intellectual property. Prizes and supply contracts presuppose that one can specify in advance the creation that one seeks to call forth. Historically, prizes have often been used as enticement by the elite for the elite, to the detriment of non-elite creative craftsmen. Intellectual property stands out on these two levels, being decentralised and open as to the creators targeted (non-elitist), as to the creation aimed for (no predetermination) and as to the creator's reward (market test). Is intellectual property fulfilling its mission? Historical research touching on copyright shows a clear stimulating effect at the time when it was first instituted, but little effect or even a slowdown following the strengthening of the right subsequently. Very recent research on music shows an increased stimulatory effect just when rampant "piracy" had effectively weakened copyright. Should we consider the possibility that we have pushed the scope and breadth of intellectual property too far, causing a slowdown in creativity that is difficult to detect so long as the legal regime remains unchanged?