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Graber, Christoph B. --- "Institutionalization of Creativity in Traditional Societies and in International Trade Law" [2011] ELECD 435; in Ghosh, Shubha; Malloy, Paul Robin (eds), "Creativity, Law and Entrepreneurship" (Edward Elgar Publishing, 2011)

Book Title: Creativity, Law and Entrepreneurship

Editor(s): Ghosh, Shubha; Malloy, Paul Robin

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848449879

Section: Chapter 11

Section Title: Institutionalization of Creativity in Traditional Societies and in International Trade Law

Author(s): Graber, Christoph B.

Number of pages: 31

Extract:

11. Institutionalization of creativity
in traditional societies and in
international trade law
Christoph B. Graber

INTRODUCTION

Creativity is the humus of a prosperous and species-rich cultural environ-
ment. Intellectual property rights (IPRs)1 are pivotal in fostering creativ-
ity since they allow creators to refinance their investments in labour and
capital. However, the interrelations between creativity and IPRs have
been strongly criticized in the past few years by two groups of legal schol-
ars approaching the topic from two distinct perspectives.
The first group of critics fear that the combined effects of raised stand-
ards of IP protection2 and technological development endanger a vibrant
public domain, which is a prerequisite for creativity in the internet age.
With a focus on copyright law, this so-called public domain movement
questions whether the existing IP model appropriately reflects the consti-
tutional balance between the private interests of authors and the public
interest in enjoying broad access to their productions.3 These critics doubt
whether, under the conditions of a digital networked environment, the
existing system of IP protection provides the best incentives to promote
creativity. Arguably, this balance, constructed in a pre-internet area of
lawmaking,4 has been disrupted since digitization and the internet inflated
the value of copyright law5 and increased its domain.6
A second group of critics has been questioning the relationship of
creativity and IPRs from a postcolonialist perspective. This group has
been accusing modern IP law of having a colonising effect on indigenous
creativity. Arguably, ...