Creativity, Law and Entrepreneurship


Updated 4/20/09

Lisa Alexander (University of Wisconsin Law School)
“Restoring Trust in Microenterprise Financing: Communities, Markets, Social Capital &  Law”
    Emerging legal scholarship about the current global economic crisis predictably focuses on broad market failures such as the collapse of the U.S. housing market, abuses in corporate executive compensation, lax U.S. securities market regulation, and other turmoil in global markets. Scholars are pondering how to develop appropriate broad-scale regulatory responses. Yet, the recent global economic crisis also provides a significant opportunity to explore the implications of the crisis for micro entrepreneurs in ethnic and immigrant communities in the United States.  Ethnic and immigrant entrepreneurship is a topic often relegated to the margins of scholarship about business, law and economic growth in U.S. markets.  However, before the global economic crisis, ethnic and immigrant entrepreneurs contributed substantially to economic growth in many densely populated U.S. communities.  In fact, immigrants in many cities started a greater share of businesses than native-born residents and served as engines of economic growth in many U.S urban centers.  Although current conditions may have stalled such growth, future increases in immigration and ethnic diversity in all developed nations, suggest that ethnic and immigrant entrepreneurship will be a significant driver of local, regional, national, and global economic growth in the not so distant future.  Thus, the current crisis represents an opportunity to move studies of ethnic and immigrant entrepreneurship from the margins to center stage.
    This Article focuses on financing sources for micro entrepreneurship in low- to moderate- income ethnic and immigrant communities in particular.  Notably, for years, low-income immigrant and ethnic entrepreneurs in the U.S. have relied on informal peer savings and lending mechanisms for micro-entrepreneurship, called rotating savings and credit associations. Rotating savings and credit associations (ROSCAs) are groups of individuals who informally come together to make regular cyclical contributions to a common fund, which is then given as a lump sum to one member in each cycle. Immigrant and ethnic groups in the U.S. have consistently used rotating savings and credit associations to create savings to pay for small-scale personal expenses and entrepreneurial activity.  Trinidadian immigrants call such mechanisms a sou-sou; Mexican immigrants, the tanda; West Africans, the esusu; the Japanese, the tanomoshi; the Chinese, the hui; the Koreans, the gae; the Filipinos, the Hulugan; and the Vietnamese, the Bui.  These forms of peer savings and lending rely on trust between members of various ethnic groups to serve as a form of collateral.  This Article explores the relationship between informal savings and credit mechanisms built upon social capital and trust, and more traditional formal funding sources such as bank loans and other capital investments.
    Some recent scholars have argued that peer lending and ROSCAs are inadequate to provide low-income entrepreneurs with sufficient capital for extensive growth.  This Article will analyze the social utility of these non-traditional forms of credit and their related offspring in light of the current credit freeze and the global economic crisis.  What is the social utility of informal peer savings and lending models for social entrepreneurship when traditional markets are devoid of capital, credit and trust?  Given the current crisis, are these forms of credit and financing rational economic alternatives, or at least options that should be included in a capital raising plan?  Further, what is the role of place in facilitating the social connections and norm generation upon which informal rotating credit associations rely?  Are such mechanisms only useful to discrete, insular, low-income ethnic and minority communities that are geographically isolated? Has peer lending over the internet replaced such mechanisms?  Do these informal markets continue over generations?  Do second and third generation immigrants still rely on such forms or do they participate in traditional markets?  Further, what is the role of formal law in maximizing the social and economic utility of such informal mechanisms? Can we formalize the possible benefits of informal market mechanisms, while still connecting communities to more traditional markets?

Olufunmilayo (Funmi) Arewa (Northwestern University School of Law)
“All Work and No Play: Intellectual Property as Serious Business”
    Intellectual property frameworks have in many respects come to focus on the protection of work, as reflected in creations of corporate and other professional creators. Such creators have also played a significant role in shaping the language and interpretations of current intellectual property frameworks in the United States. This professionalization of creation also reflects the creation of new models of creation based within corporate contexts in the form of established corporations that are often referred to as the culture industries, as well as models of individual creation that reflect significant influence from the structure of the culture industries. This work model of creativity does not leave much room for play, which is an aspect of creativity that deserves greater attention in discussions of intellectual property. This paper will touch upon some implications of the development and growth of the culture industries for intellectual property. It will focus specifically on some implications of the professionalization of creation and performance for those who may fall outside of those categories, including amateur creators and listeners. It will also touch upon changing historical notions about who is an “authorized” creator and the ways in which intellectual property frameworks relate to conceptions of work and play.

Megan Carpenter (Texas Wesleyan University School of Law)
“From Coal to Content: The Role of Intellectual Property in Transitional Economies”

Deven Desai (Thomas Jefferson School of Law)
“Individual Branding: How the Rise of Individual Creation and Distribution of Cultural Products
Confuses the Intellectual Property System”
    Much of the current intellectual property system can be explained as meeting the needs of a cultural industry based on individual authors who look to corporate entities to mass produce and distribute cultural products. Today, however, as digital technology decreases the cost of both the production and distribution of cultural products, individuals have taken on previously corporate roles. Authors now seek copyright and trademark protection for their work in ways that expand authorial control at the expense of the intellectual property system as a whole. This paper argues that these new modes of generating value may require protection but that the current intellectual property system is not fully equipped to provide such protection without upsetting the balance between creators and users. As such this paper seeks to map authors’ new interests as a way to show where the intellectual property system can meet these new needs or where it must change. Last given the speed with which technology and this type of production evolves, the paper suggests that the law may not best way to manage many of these interests at all.

William T. Gallagher (Golden Gate University School of Law)
“‘Are They Real Lawyers?’: The Role of Patent Prosecutors in the Patenting (and Inventive?) Process”
    My research-in-progress is an empirical study of patent "prosecutors"-lawyers who are licensed to represent clients before the United States Patent and Trademark Office for the purpose of securing patent rights to inventions. This study is part of a larger project that explores how, why, and to what effect lawyers help clients acquire and enforce intellectual property rights.
    This research is based on data derived from semi-structured face-to-face interviews with lawyers who regularly prosecute patents on behalf of clients. One theme I am exploring in this research is what role(s) patent prosecutors play in the patenting process. My research also focuses on the strategic choices made by patent lawyers in the process of patenting inventions.

Christoph-Beat Graber (University of Lucerne)
“How Is Creativity Manifested in Traditional Cultural Systems and within International Trade Law?”
    Although many indigenous peoples in the world in certain respects are still strongly rooted in their traditional forms of life and cultural practice in other respects they are inclined to opening up and gradually move towards more modern forms of social organisation. This gradual shift from tradition to modernity is well reflected in the various ways indigenous peoples make use of their tangible or intangible products of creative intellectual activity (commonly known as traditional cultural expressions or TCE). On the one hand, indigenous peoples are keen to keep their sacred TCE secret and to prevent its unauthorised disclosure and subsequent use. On the other hand, certain indigenous creators are gradually moving away from their traditional role as custodians of a clan's cultural heritage towards a more modern role as artists interested in exhibiting their works in public and selling them on the art market. The difficult questions here are the following: Who is determining which TCE can be traded. How are issues of ownership and benefit sharing to be resolved? Are such questions to be resolved under customary rules of indigenous peoples or under modern law?
    The paper looks at recent developments in international law and policy making in the fields of human rights, intellectual property and cultural heritage to make sure that the diverging interests described are adequately respected. Secondly, the paper inquires how rules of international trade law (including the WTO) could be improved in order to better respond to the desire of indigenous peoples to more actively participate in international trade with certain TCE without renouncing on their claims of self-determination and self-governance in cultural respects vis à vis their “host countries”?

Stuart J.H. Graham (UC-Berkeley School of Law (Boalt Hall) and Georgia Institute of Technology) and
Ted M. Sichelman (Berkeley Center for Law & Technology)
“The 2008 Kauffman-Berkeley Patent Survey: Why Do Entrepreneurs Patent (And Not)?”
    Numerous scholars have proposed many different explanations for why inventors and innovative companies patent. Few scholars, however, have conducted empirical studies seeking to confirm or deny these theories. Furthermore, there are only a handful of studies examining how entrepreneurs and start-up companies use and are affected by the U.S. patent system, and none answers the question presented in our title.
    We first briefly survey the dominant theories of why innovators file for patents and why they forgo patenting, focusing on how well, if at all, these theories apply to start-up companies. Next, we examine the existing empirical data on the topic and find it generally inconclusive.
    Last, we describe results from the 2008 Berkeley Patent Survey, the first survey in the United States examining patents and entrepreneurship.

Richard Gruner (John Marshall Law School)
“The Evolution of Collaborative Innovation: Evidence from the Patent Record”
    This paper analyzes changes in collaborative innovation groups as reflected in multi-inventor patents. The nature of collaborative processes leading to significant technical advances has been the focus of considerable sociological and managerial studies. These studies have sought to understand the features of contacts and interactions between multiple researchers needed to promote effective collaboration. Two different types of collaborative efforts have been considered in the past: first, multi-party innovation within a particular field where the objective is to effectively combine the work of several similarly situated and trained specialists and, second, multi-party innovation involving linkages and combinations of the work of parties from different disciplines.
    One key area of study is the type of personal interaction between multiple researchers that is needed to promote effective communication and exchanges of ideas to produce new designs and discoveries. From early models of university research labs and industrial engineering facilities that stressed face-to-face interactions between multiple researchers, group innovation efforts have sought to move to more distributed innovation groups based on modern communication systems. These newer models of group innovation would depend heavily on new communication technologies such as telephone and internet linkages to help multiple innovators in physically separate locations to work effectively as teams. These communications technologies would help the team members to keep apprised of the each others work, to share findings quickly and effectively, to coordinate and combine their results in useful ways to design new innovations and research projects, and to avoid duplication of design and testing efforts.
    The present research project seeks to use patent records to measure the effectiveness of these new innovation models across two dimensions: increases in collaborative efforts leading to patentable innovations and increases in the frequency of physically displaced innovation among multi-party inventions. The research design utilizes a randomly selected sample of 800 patents each from 1976 and 2006 to measure two characteristics: 1) the percentage of patented inventions that were products of group innovation (that is, which had two or more co-inventors associated with the relevant patent) and 2) the percentage of the multi-inventor patents that involved at least one researcher who was physically remote from his or her colleagues and thereby probably not able regularly commute and engage in face-to-face interactions with fellow inventors. For the purpose of assessing physically remote inventors, a party was considered remote and unlikely to be in regular face-to-face contact with fellow researchers if his or her location was 100 miles or more displaced from that of lead inventor specified for a particular patent.
    The research tested two hypotheses. First, it was expected that the advent of the Internet and the improvement of other communications technologies between 1976 and 2006 would have resulted in a significant increase in the frequency of collaborative efforts over this period and a greater fraction of patented innovations emanating from group innovation as reflected in a greater percentage of multi-inventor patents. Second, it was expected that the advent of greater communications capabilities between 1976 and 2006 would enable greater innovation at a distance, resulting in a greater percentage of multi-inventor patents in which the inventors were not all in the same local geographic area.
    Interestingly, the results of the research bore out the first of these hypotheses, but not the second. Multi-inventor advances were found to be significantly more prevalent in the post-Internet patent sample than in the pre-Internet set. However, while there was some increase in the percentage of multi-inventor patents with physically separated inventors, the change in this frequency was rather small, suggesting that the Internet has not made group innovation at a distance substantially easier or more effective. In short, distance still matters and face-to-face interactions appear to still be very important even as more and more researchers appear to be working in groups to produce multi-party innovations. While the communication capabilities of the Internet may still be important in promoting local interactions, the ability to form effective innovation groups appears to depend on some need for or advantage to physical interaction.
    Further research will be needed to determine the continuing advantages afforded by physical interactions between multiple innovators. There may be several different sources of these physical proximity advantages. These may include advantages afforded by organizational contexts, such as the fact that researchers work best together if they are associated with a particular corporation or university and work together in a particular facility with preexisting, coordinated research resources and infrastructure. Alternatively, it may be that communication of research ideas or results is still most effectively accomplished through physical interactions between multiple innovators. If this is the case, it may be possible to rethink and augment communications methods to make communication at a distance more effective for researchers and to better facilitate innovation without physical interactions. Finally, it may be that researchers who share social interactions of the sort facilitated by physical proximity form better teams and are more productive than their physically remote counterparts. If this is the case, the solution for better innovation at a distance may lie in mechanisms for innovation team building that will operate in addition to the interactions needed for particular engineering or research projects.

Debora J. Halbert (University of Hawaii at Manoa)
“Creativity without Copyright: Anarchist Publishers and their Approaches to Copyright Protection"
    The prevailing economic model asserts that creativity does not become fully incentivized unless a property right in the final product is secured. However, ample evidence exists that this claim is at best only partially true. For example, many people create without the intention of selling their creative work commercially, but those engaged in the professional production of culture require copyright protection in order to generate future productivity. This paper investigates areas where commercial creativity does not require copyright. The paper will report on a survey of anarchist presses operating primarily in the United States and Europe and the range of copyright statements that can be found functioning within these presses. Specifically, I'll look at anarchist presses as a business model that offers a range of perspectives on copyrighted materials from the use of traditional copyright to a blatant rejection of copyright and authorship itself. The working hypothesis is that even in the world of commercial publishing, not all business models have to look the same and that it is possible to function without copyright law to pursue economic reward.

Steven Hetcher (Vanderbilt University Law School)
“The Challenge of Monetizing User-Generated Content”
    My article will explore user-generated content which I will characterize as perhaps the single most important development in the domain of creative content in recent years. On the dominant economic account, it is dubious whether user-generated content should even be copyright protected. The reason is that on the economic model, the government doles out a mini-monopoly in order to solve the collective action problem that arises due to the public goods structure of IP works. All rational actors will seek to free ride on the provision of public goods by others since their provision is costly and hence it is better to let others provide the goods and for one to free ride on their provision. This core framework of the economic approach to copyright is completely upended by most user-generated content, however, which appears not to be subject to the free rider problem. Instead, people by the millions create works in the millions despite an apparent lack of economic incentive to do so. Yet early experience has shown that such works, as for example those found on Facebook, may possess great economic value if they can be monetized.
    The question that arises in the present context is what do the special features of UGC amount to when it comes to the issue of entrepreneurship? On the surface, we should expect the connection to be different from the typical one that exists between entrepreneurs and creative works. The obvious reason is that typically entrepreneurs seek to monetize the value of creative works by funding their creation or acquiring rights to works already created in order to then make money by means of controlling the consumption of these works. Arguably, however, this whole model must be rethought in the context of UGC works. If the works are not created pursuant to monetary incentives, then the entrepreneur must determine by what other means the creation and legal control of such works might be achieved if the normal monetary incentive is not necessarily at work in the production process for goods of this sort.
    Indeed, recent work of Benkler and others suggests that monetary incentives may be counter-productive in that in some “sharing” contexts the introduction of monetary incentives may actually reduce the motivation for creation. In other contexts, the introduction of property rights may serve as a drag on a system of so-called “peer production” of certain sorts of works. The system of production may be most efficient when information goods can be shared in a dynamic fashion without the ever present need to engage in contractual relationships with regard to the underlying peer-production goods. Benkler has focused on examples such as Linux software or Wikipedia, both of which are ongoing peer productions that at their core are entrepreneur-free, as it were. In other words, Wikipedia and Linux do not have business models. Yet, entrepreneurs are nothing if not resourceful and even in the case of peer productions such as Wikipedia and Linux, where the core creative content is provided for free, business models are beginning to emerge. Entrepreneurs at companies such as Red Hat in the case of Linux and Wikia in the case of Wikipedia have discovered means to profit from the free acts of creativity of others. The goal of my article will be to come to a better understanding of the new types of collaborative and entrepreneurial relationships that are emerging or that might emerge between entrepreneurs and the creators of user-generated content. 

Robin Paul Malloy (Syracuse University College of Law)
“Real Estate Transactions, Market Exchange Theory, & Entrepreneurship”
    This paper expands on work begun in two of my earlier books: Law and Market Economy: Reinterpreting the Values of Law and Economics (1), and Law in a Market Context: An Introduction to Market Concepts in Legal Reasoning (2). In each of these books I elaborate on a theory of law in a market context. I address the market as a place of meaning and value formation, and focus on the networks and patterns of exchange in human relationships. This is a cultural-interpretive view of markets that is unconstrained by certain assumptions used by those who understand economics as a science of choice rather than as a semiotic system for communicating meaning in the networks and patterns of human relationships.
    In market exchange theory, or what I have elsewhere termed law and market economy, it is assumed that people form beliefs as predicates to action. Therefore, fixation of belief comes before market choice, and we need to understand the process by which we fix belief if we want to understand law in a market context. Moreover, fixation of belief arises from a communicative process, and is not dependent on methodological individualism or an endogenous economic calculus.
    In this paper I am addressing a small part of a much larger project on developing a theory of real estate transactions as an entrepreneurial process; as a process of capturing and creating value through exchange. There are a number of parts to the overall theory but this paper only focuses on the way in which entrepreneurship informs the exchange relationship in a real estate transaction. In examining the structure of a transaction it is important to consider the various perspectives one might take in interpreting the exchange. I identify three categories of perspective as central to understanding the structure of a real estate transaction. These three perspectives include entrepreneurial focus, exchange relationship, and transactional type. Of relevance here is entrepreneurial focus which includes three classifications; transactional entrepreneur, speculator entrepreneur, and innovator entrepreneur. Each type of entrepreneur brings different expectations to the exchange.
    In general I define an entrepreneur as:
    --a person with a special alertness to the opportunity to capture and create value from changes in the existing networks and patterns of exchange (including gaps in information),
    --who forms a belief concerning the potential future value to be gained from exploiting the observed opportunity, and
    --acts on that belief in a cost effective way with the hope of transforming the hypothesized (potential) value into actual value.

(1) Cambridge University Press, 2000; published in English and translated into Chinese and Spanish.
(2) Cambridge University Press, 2004.

Sean O'Connor (University of Washington School of Law)
“The Central Role of Law as a Meta Method in Creativity and Entrepreneurship”
    A core theme of traditional intellectual property (IP) law, policy, and scholarship is its focus on incentivizing the creation of inventions and artistic works. This story has never made much sense as many scientists, technologists, artists, and artisans create for purposes other than the IP rights they may receive. But it also belies an unfortunate fixation on artifacts as the locus of human ingenuity. This paper proposes that instead it is the methods of innovation that are the true locus of human progress. Thus, from a historical perspective, one finds that the Scientific Revolution was a revolution in methods of inquiry just as the Renaissance was a revolution in methods of artistic and artisanal activities. In fact, these overlapping pivotal developments in Western history now seem to be largely the result of a fruitful cross-pollination of methods from different fields (art utilizing developments in math and science and vice versa). The innovation did not stop with methods of direct production of artistic, artisanal, scientific, or technological works however. Perhaps most important from a long term perspective, the revolution in methods of the Renaissance and Early Modern periods also generated "meta methods" to create a supportive infrastructure for not only the creation of these kinds of new works and artifacts, but also for the successful development and dissemination/distribution of useful or usable embodiments of them. Thus this period saw the creation of modern patent and copyright systems, as well as new business forms such as the joint stock corporation for risky, capital intensive ventures. The genius of such law based meta methods was that they could support the ongoing evolution of human innovation and its exploitation, without being tied to any particular innovation. In other words, they implicitly employ an evolutionary perspective that sees innovation as a method to develop artifacts that are suitable for a certain set of background conditions at a given time. When the background changes, the artifacts likely must too. Accordingly, an obsessive focus on "great works" - artifacts that stand the test of time - has obscured the proper role for innovation methods and meta methods. At the same time, some of the most contentious issues in IP today involve exclusive rights to lower levels of these methods such as business and tax method patents. This paper establishes the different levels of methods and meta methods, with special focus on the law based meta methods, in a way that illuminates critical policy decisions by ascribing some of them to the support of creation/invention and others to the support of entrepreneurship that translates the original creation/invention into usable, distributable embodiments. In doing so, the paper affirms those who have argued that the existing IP systems are primarily directed to support the latter, not the former. Finally, the paper explores the innovation represented by these law-based meta methods themselves and the implications these insights have for contemporary policy to foster creativity and entrepreneurship.

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