Raffaele Danna, Arianna Martinelli and and Alessandro Nuvolari
CREATe 21 for 2021 Project | Link
The literature on negative intellectual property (IP) spaces investigates how innovation and creativity are incentivized in sectors where IP law does not apply, or is not enforced. This contribution seeks to offer an introduction to the concept of negative IP, the debates surrounding it, and the case studies of negative IP developed so far, with particular attention to those concerning copyright.
The concept of negative IP spaces was introduced by Sprigman and Raustiala in 2006, who borrowed it from the visual arts (Raustiala and Sprigman (2006); (2009); (2012)). The negative space can be defined as the space which is not occupied by a form, and which can be used to add meaning to the main figure (a striking example being the Rubin’s vase). The authors argued that studying innovation and creativity in contexts which do not fall under the domain of standard formalized intellectual property rights regimes (IPRs) could advance our understanding of the drivers of creative processes. In this respect, negative IP space provides an intriguing setting to investigate innovation and creativity in a sort of natural experiment, without the influence of the incentives provided by IP law (Sprigman (2017), 588–90).
According to the standard economic framework, IP law incentivises innovation by providing creators and inventors with exclusive rights on their creations. The rationale is that, if creators can anticipate that they will profit through these exclusive rights, they will invest in inventive activity. It follows that exclusive rights provide an effective set of incentives to promote innovation and creativity (Rosenblatt (2010), 318). According to this view, copying is detrimental to creativity because it crowds out the appropriate incentives by infringing the author’s exclusive rights. The case study on the US fashion industry presented by Sprigman and Raustiala in 2006 raised a theoretical conundrum. First, the authors showed that US IP law does not provide effective protection to the core innovation of the fashion industry, i.e. fashion designs. Second, they argued that the fashion industry thrives not despite the fact that its core innovation is not protected by IP law, but, on the contrary, because this lack of IP protection leads to unrestrained copying. For the standard economic theory of IP law, this is a glaring paradox.
Debates and recent evolutions
By documenting that creativity can also flourish outside the incentives provided by formal IP law in general, and by copyright in particular, literature from law and economics has contributed to the debate on whether IPRs effectively promote innovation and creativity. This is an open debate that spans across several research fields and touches upon key issues of copyright regulation.
