Abstract:
Intellectual property scholars assume that artists and inventors are risk averse. These creators are thought to prefer a known outcome to an unknown one of equivalent expected value. IP scholars therefore frequently argue that legal uncertainty will lead to suboptimal levels of artistic and inventive work.
This Article challenges IP’s fundamental risk-aversion assumption. Theory and evidence from the interdisciplinary field of creativity research indicates that a willingness to take risks is an essential part of the creative personality. As a result, IP scholars should not generally assume that creators are risk averse; instead, the most plausible starting point is that creators are risk seeking, either in absolute terms or at least compared to the general population. The creativity literature also suggests that risk might be an environmental factor facilitating creativity, whether or not creators themselves prefer it. This possibility demands that IP scholars take a more nuanced approach to the impact of IP risk than the simplified risk preference approach they have pursued thus far.
The analysis here has significant implications for many persistent questions in IP law and policy. It indicates, for example, that uncertain doctrines like the fair use defense in copyright law are not nearly so problematic as ordinarily assumed. And efforts to make IP more predictable, like the Supreme Court’s recent opinion in Nautilus v Biosig, may have hidden costs. Most fundamentally, the analysis suggests that patents and copyrights — rewards of uncertain value — are better able to stimulate creativity than more predictable mechanisms like grants or subsidies.
Sawicki, Andres, Risky IP (February 2016).
First posted 2016-03-18 08:55:52
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