Fostering Innovation without IP – What Enables Informal Creativity?

Eden Sarid (University of Toronto), “Fostering Innovation without IP – What Enables Informal Creativity?”

In recent years a growing body of literature has begun to explore new grounds in intellectual property’s landscape: creative communities in which innovation and creativity thrive despite, or thanks to, the lack of formal intellectual property law [“informal creative communities”]. Many diverse informal creative communities have been studied: open source software developers, fashion designers, chefs, physicians who develop medical treatment methods, and even drag-queens and tattoo artists, to name a few. The studies suggest that these informal creative communities employ a myriad of economic and social mechanisms, rather than intellectual property law, to advance and to protect creativity and innovation. This scholarship has already enriched the discourse around intellectual property by providing concrete examples that question conventional wisdoms, for instance, by pointing that piracy might be beneficial to creators in certain creative communities or by demonstrating that certain creative communities willfully chose to forgo legal regulation. However, research has not yet provided an account of the legal, social and economic structures that underlie the informal creative communities and that enable them to thrive and innovate despite lack of intellectual property law’s protection. 

In order to fill this gap in the current literature the paper systematically analyzes the different studies of the informal creative communities, collectively. It examines what features regulate creativity in each informal creative community, and to what degree. It assesses the nature of the intellectual good and the nature of the community that creates it, and the economic and social mechanisms employed to foster creativity and innovation. This provides a detailed account of the informal creative communities’ landscape. Based on this account, the paper suggests that all the informal creative communities evidence some presence of intellectual property law in the background; that some informal creative communities mainly rely on economic mechanisms, some on social regulation and some on both; and that the nature of the intellectual good and of the community in which it is created likely explain the regulating factors. 
The paper then compares the findings in the informal creative communities with studies regarding informal (non-creative) communities in various fields such as real and movable property, banking, and contract law. It demonstrates that the informal creative communities share many of the patterns and features that are evident in these other informal (non-creative) communities, such as a measure of law in the background, strong reliance on social cohesion and reputational norms, and employment of certain economic mechanisms (e.g., network effects). The paper thus proceeds to claim that the commonalities between creative and non-creative informal communities are to be considered seriously, because if similar patterns are apparent in different informal legal communities, this perhaps tells us what renders a community able to function well without formal law’s protection. This indeed strengthens the findings in the previous part (regarding informal creative communities) and adds vigour to the claim that certain features are essential for sustainable non-legal regulation. However, the paper reveals that in regards to intellectual property we also witness unique features, such as attribution norms, and that they too are part of what allows informal creative communities to foster creativity and innovation without IP law.  

Building on the observations from the previous parts, the paper then attempts to explain what makes it possible for an informal creative community to function in the absence of intellectual property law. It suggests that the creative community must manifest either strong social cohesion, or financial prospects not based on exclusivity in the intellectual good it produces, or both. And that in addition it must manifest strong norms of attribution. 

    The paper then goes on to suggest that by understanding what makes informal creativity possible, scholars can consider the lessons it holds for the discourse regarding the nexus between IP laws and creativity and innovation. For example, by examining whether some of the informal creativity’s principles can be implemented in IP laws, by measuring the advantages and disadvantages of formal and informal creativity and their ability to foster innovation, or by evaluating the sustainability of the principles that underlie informal creativity. The paper provides some initial thoughts with regards to these questions.