Encouraging Creativity

Legal fights over intellectual property — including copyright, trademark, patent, and trade secrets — are erupting at a dizzying pace. Last month, Stanford's prolific professor Lawrence Lessig, author of the new book Remix, wrote a column in The Wall Street Journal in which he argued that collateral damage is being heaped on creators through extreme regulation that "makes it difficult, sometimes impossible," for a wide range of creativity to legally exist.

California is home to a vibrant array of such disputes. According to the Intellectual Property Trademark Attorney Blog, in October alone lawsuits were filed over intellectual property disputes involving religious prayer cards and figurines, the use of the term "Cash 4 Gold," Mexico's Club De Futbol America's trademark, Yu-Gi-Oh! trading cards, and whether Dolce & Gabbana can put stripes on their athletic shoes, or Genetic Jeans can put "XX" on their jeans.

Perhaps the highest-profile dispute is the battle over Internet file sharing. On September 8, 2003, the Recording Industry Association of America (RIAA) filed copyright infringement lawsuits against 261 people for sharing songs on peer-to-peer networks such as Kazaa. Since then, the RIAA has sued, settled, or threatened litigation against more than 30,000 Americans. Yet according to the Electronic Frontier Foundation, "in 2008 that there were 20 unauthorized downloads for every legitimate download purchased." So, for all the efforts of the RIAA, 95 percent of all digital music downloads continue to come from unauthorized sources.

YouTube disputes are now taking center stage, and Google has come up with a novel resolution. It has a software program that will filter copyrighted material and, instead of removing the items, insert commercials. This may well satisfy a number of rights holders. Google also just settled a class-action lawsuit brought by authors and publishers, claiming that it had violated their copyrights by scanning their books, creating an electronic database, and displaying short excerpts without permission. As part of the settlement, the company paid $125 million. Yet legal disagreement between the two sides persists. "We had a major disagreement with Google about copyright law, we still do and probably always will," said Paul Aiken, executive director of the Author's Guild.

In short, the whole area is a legal, practical, and intellectual mess. While the legal architecture of the area is arcane and unnecessarily complex, and the current societal obsession with "owning" things unhelpful, the main reason for the fog is that we have not thought through our dual roles as producers and consumers of ideas. When we write a song, invent a device, or produce a creative thing, we instinctively want "protection" for it. We want proper attribution and may want to make a living from it. And yet, who among us has not photocopied an article or book without compensating the author or shared music with friends without compensating the songwriter? For just such reasons, it's easy to see both sides of this issue.

What is needed is a more thoughtful understanding of what we are trying to protect and what we are trying to encourage. Seemingly arcane philosophies underlie different theories regarding intellectual property. According to William Fisher, a Harvard expert in this area, there are four competing visions of the philosophy of intellectual property. The first is utilitarianism, which requires society to strike a balance between the power of exclusive rights to stimulate the creation of inventions and works of art and the tendency of such rights to curtail widespread public enjoyment of those creations. The second is the "labor theory" of John Locke that all ideas are unowned or "held in common," but that the person who discovers them or refines them has a natural property right to the fruits of his or her efforts. The third idea, "personality theory," which guides much of European law, is that creative ideas are part of our personality and crucial to the satisfaction of our fundamental needs, and so policymakers should strive to create and allocate entitlements to resources in the fashion that best enables people to fulfill those needs. The fourth and newest idea, social planning theory, argues that intellectual-property rights can and should be shaped so as to help foster the achievement of a just and attractive culture; in the medical arena, for instance, this would mean less protection for patents on life-saving drugs, especially in those areas in which certain societies do not have the resources to pay the going rate.

So let the conversation begin. How do we encourage the widespread dissemination of creative works but at the same time give adequate protection to the creators? Are our creations part of our personality? Do we get "rights" when we put labor into an item? If so, how long should these rights last? Should those rights change if they are owned by a big corporation? While there is no be-all and end-all theory to resolve all such disputes, creative works clearly enhance all our lives.

My starting place is that both the production and the use of creativity is a collective endeavor. Those of us who bring creative ideas to the fore should be encouraged and rewarded for our practical and creative efforts. But there are lots of ways to do this. Simply shoehorning creative efforts into the private-property matrix deforms their ability to be used beneficially by everyone.

And seldom do we explicitly acknowledge that most of our creative efforts are mashups of the ideas of others. In a case from the mid-1990s in which the baseball players union tried to stop the production of parody trading cards, a federal appeals court wrote, "Parodies of celebrities are an especially valuable means of expression because of the role celebrities play in modern society. As one commentator explained, celebrities are 'common points of reference for millions of individuals who may never interact with one another, but who share, by virtue of their participation in a mediated culture, a common experience, and a collective memory.' Through their pervasive presence in the media, sports and entertainment celebrities come to symbolize certain ideas and values. ... Celebrities, then, are an important element of the shared communicative resources of our cultural domain." This court got it right.

Given the importance of creativity to our lives, these questions, both specific and general, are worth thinking about by all of us.