Well before there were legal rules—like patent and copyright—that seek to spark creativity, there was the human urge to create. The famed cave paintings in Lascaux, France, are at least 15,000 years old, and there are creative works that may be far older. Some even contend that there is an “art instinct” that drives individuals to produce things of beauty and meaning.

Regardless of its origin, clearly many of us do have an urge to create new things, or at least a preference for it, and we indulge that preference when we can—whether or not our innovations are protected against copying. One writer aptly put it this way: “Edison was born to be an inventor, Barishnikov was born to be a dancer, and no matter what the legal rules, Edison would no more have stopped inventing than Barishnikov would have stopped dancing.”

The premise of laws against copying, however, is that humanity’s innate or socially determined desire to create is simply not enough in a modern innovation-based economy. To have sustained innovation—and to do so in areas that require significant investments of time and money—it is necessary to have a reliable expectation of economic reward. This is true both for creators and for the intermediaries—publishers, record and pharmaceutical companies, and the like—that in a modern economy often fund, organize, and distribute innovative work.

In our legal system, that expectation of reward rests on rules that guarantee a monopoly over a given creation for a period of time and restrain copying by others. The result is that the creator, and not the copyist, enjoys whatever profits may flow from the innovation. Knowing this, the creator is encouraged to create. We will call this basic approach the monopoly theory of innovation.

The monopoly theory and its belief in the destructive power of imitation are widely accepted. The monopoly theory is hostile to imitation because imitation, it is thought, inevitably undermines later rewards. As a result, imitation can destroy the incentive to innovate in the first place. This is why so many observers are so fearful of the emergence of technologies, such as the Internet and filesharing, that make copying cheaper and easier. More copying, they believe, must mean less creativity.

But is this really the case? We and others have examined a wide array of innovative industries that, in one way or another, challenge this basic premise. Fashion, food, fonts, football, financial innovations—in all of these creative areas, and more, copying is free and often legal. Sometimes copying is simply permitted as a matter of practicality. But in all, innovations are open to imitation. By the lights of the monopoly theory, these industries should be only weakly creative. Yet the opposite is true. These industries are vibrantly creative.

My colleague Kal Raustiala and I discuss this research in our new book, The Knockoff Economy. And we believe that it's important to better understand the complex relationship between copying and creativity. Our research suggests that in many instances, copying and creativity can co-exist. This does not mean that copying is always good. Nor does it mean that our copyright and patent laws ought to be abolished; they are an important element in our economic and cultural vibrancy. But it does mean that the relationship between imitation and innovation is much more subtle than commonly believed. We do not face a stark choice between the two. In some creative endeavors imitation has little effect on innovation. And in others, imitation can even spark innovation. The really interesting question is when—and why—this is true.

In our next post, we'll discuss some laboratory research that one of us has done (with a co-author) that sheds light on how creators tend to be irrationally optimistic about their shot at artistic, literary, or scientific success.  And how this irrational optimism can lead creators to invest more in their creativity than we would otherwise expect.  All of which may, we think, lead to some happy results . . .

More soon.

About the Authors

Kal Raustiala, J.D., Ph.D

Kal Raustiala, J.D., Ph.D., is Professor of Law at UCLA and the author of Does the Constitution Follow the Flag? He is the co-author of The Knockoff Economy.

Chris Sprigman, J.D.

Christopher Sprigman, J.D., is the Class of 1963 Research Professor at the University of Virginia School of Law. He is the co-author of The Knockoff Economy.

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