What are the barriers to progress? For decades, IP scholars had an easy answer: suboptimal private investment in public goods. Recent work on the psychology and sociology of creativity has, however, undermined this easy answer. Simply put, the level of private investment does not dictate the “Progress” of “Science and useful Arts.” As a result, IP scholars need richer models of technological and cultural progress. This Article develops precisely such a model. I begin with the premise that new ideas and artifacts depend on old ones. Drawing from social scientific research, I then model creativity as emerging from interactions among three components: (1) a domain of existing ideas and artifacts; (2) makers who rely on those existing ideas and artifacts to generate new ones; and (3) evaluators who assess a domain’s ideas and artifacts. The primary barrier to progress is whether makers can find the existing ideas and artifacts that lay the foundation for new ones. This ecosystem model of creativity yields powerful insights for IP scholars. Most fundamentally, it generates radically different expectations about technological and cultural progress. The conventional wisdom is that progress is always too slow. But the historical record does not match this conventional wisdom: in some periods, progress has indeed been glacial; in others, meteoric. Consistent with those observed variations in rates of progress, the ecosystem model suggests that progress entails three distinct phases: slow takeoff, rapid and accelerating growth, and ossification. During both the slow takeoff and ossifcation phases, the core problem is that makers cannot find the ideas and artifacts they need (albeit for different reasons in each phase). Rapid and accelerating growth can nevertheless occur when domain-maker-evaluator interactions increase the odds that makers find the most fruitful existing ideas and artifacts. This novel account of progress has profound implications for IP theory, policy, and doctrine. First, the ecosystem model offers a descriptive framework that does not depend on particular normative priors about optimal rates of progress; it is therefore compatible with and suitable for use with a wide array of normative positions. Second, it reveals that innovation and cultural policy levers can influence the salience of ideas and artifacts in a domain. This salience effect is a novel dimension for policymakers to consider when choosing between IP and alternative mechanisms for promoting progress. Finally, the ecosystem model shows how doctrines like patent law’s written description requirement and copyright law’s attribution right could be reformed so as to ameliorate not just economic, but also psychological and sociological barriers to progress.
To read this Article, please click here: The Law of Creativity?
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