ABSTRACT
An insidious myth has begun pervading intellectual property (IP) law and scholarship. Courts and academics commonly assume that the purposes of copyright law, patent law, and even in some cases trademark law are to reward creativity. The belief has been encouraged by opinions of the Supreme Court and influential lower courts and has become so embedded in IP law discourse that many scholars now dispute the effectiveness or relevance of copyright law and patent law in light of their understandings of psychological research showing that creativity is primarily intrinsically motivated. This article challenges the assumption on which these arguments are based by denying that any branch of IP law – copyright, patent, or trademark – is primarily designed to promote creativity. Although creativity is relevant in some ways to each field, it is not an indispensable or even a central goal of any of them. The article further explains why the related claim that IP laws ‘reward’ or ‘incentivize’ the desired behavior misrepresents the functioning of IP law. The article concludes by explaining how each field of IP law attempts to accomplish more complex (and, in each field, different) goals using more subtle and variable means.
Fellmeth, Aaron Xavier, Uncreative Intellectual Property Law (January 11, 2020). Texas Intellectual Property Law Journal, volume 27, no 1, 2019.
First posted 2020-02-08 09:38:55
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