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Raustiala, Kal; Jon Sprigman, Christopher --- "When are IP rights necessary? Evidence from innovation in IP's negative space" [2019] ELECD 1940; in Depoorter, Ben; Menell, Peter; Schwartz, David (eds), "Research Handbook on the Economics of Intellectual Property Law" (Edward Elgar Publishing, 2019) 309

Book Title: Research Handbook on the Economics of Intellectual Property Law

Editor(s): Depoorter, Ben; Menell, Peter; Schwartz, David

Publisher: Edward Elgar Publishing

Section: Chapter 11

Section Title: When are IP rights necessary? Evidence from innovation in IP’s negative space

Author(s): Raustiala, Kal; Jon Sprigman, Christopher

Number of pages: 21

Abstract/Description:

The law and economics of intellectual property (IP) has long rested on a foundational, if implicit, premise: that IP law is best understood by studying how legal rules operate in actual markets for creative work. Yet this way of thinking about IP leaves open a host of important and fascinating questions. Can innovation flourish in the absence of IP protection? Can market incentives, psychological factors, social norms, first-mover advantages, or any number of other factors, serve as whole or partial substitutes for IP rights? In this chapter, we explore IP’s ‘negative space’—that is, those creative and innovative fields that, for historical, doctrinal, or other reasons are not addressed by IP law—and the scholarship that has begun to illuminate it. This literature is barely more than a decade old, but already it has shaped how scholars today think about IP. In particular, it shows that the link between IP and creative incentives is more conditional and contested than many believe.