Stimulating Creative Endeavour: How Well Does Intellectual Property Do It?

Conventional wisdom has it that intellectual property is essential to draw talent and effort into creative endeavour of various kinds. Does intellectual property suitably fulfil this noble mission? Is it indispensable in that role? Over 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. (The argument that follows draws on the chapter on intellectual property in Rousseau et al. (Business law and economics for civil law systems, Edward Elgar, Cheltenham, 2021), 66–150.) Recently, a new field of study has appeared: “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. The article provides an overview of empirical research over the past half-century aimed at answering the question of how well these forms of stimuli work, historically and currently. It suggests that intellectual property is indispensable, yet that one must wonder whether copyright in particular has been stretched beyond its most appropriate range and at times may cause a slowdown in creativity.