IP Law and Creativity
Intellectual property law, i.e. the law that grants exclusive rights to creative works, technical inventions or brands always faced the task of striking a balance between providing too much and too little protection for creators or developers. A balance aimed to foster creativity and innovation.
In the digital age the question arises, whether, which and to what degree exclusive rights granted by IP law should also apply to software. From a factual perspective, at least two essential particularities make a rebalance necessary: unlike a book or a machine, software or code does not have a physical representation to which the protection could be attached. It rather equals an idea in that it can be reproduced easily and the same results can be achieved using different code. Second, the mode in which software is produced is often one of collaboration, following the spirit of the internet community’s origin and practically through the existence of collaboration platforms, free source code libraries etc. In light of these differences, could the aim of fostering creativity and innovation not be reached without IP protection?
When trying to find an answer to this question, one finds a variety of positions taken by i.a. IP law experts, industries and political activists. And it seems that a further bandwidth of fields is of relevance to this topic. Thinking about IP laws underlying aim, what it is that motivates people to become more creative, psychology, sociology and behavioural economics come into play. Is creativity an essential human activity, is it one that is fostered by collaboration, does it stifle if sufficient social or economic recognition lacks, if it does not provide humans with economic security?
The relevance of these questions makes it ever more apparent that the domain of IP law is a social construct. It shapes the way society evolves. All the more important it is that it achieves a balance between the involved interests and that exclusive rights are granted carefully, always taking into account its overarching aim of fostering creativity. In the digital age the balance will most likely be heavier on the side of non-exclusivity.
