ABSTRACT
Although much research regarding intellectual property law and its relationship with the norms of creative communities paints a rosy picture of norms both as governance mechanisms and motivational frameworks for creators and innovators, it also helps identify where norms falter and may inhibit progress, or where law is necessary to resolve disputes over what copying and imitation behaviors are allowed and when permission is required. Even when norms govern intra-community behavior well, they cannot resolve disputes among communities with conflicting norms. Further, there might be circumstances when norms are harmful for reasons unrelated to innovation governance, such as when they inspire violence or other social harms. While law and norms scholarship typically characterizes norms as existing ‘in the shadow of’ law, this Article considers why and how formal intellectual doctrine might benefit from situating itself conceptually in the shadow of diverse norms that can inform the operation of law and its interpretation, particularly in circumstances when norms conflict.
Rosenblatt, Elizabeth, IP Law in the Shadow of Norms (July 30, 2021).
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