Trying to harness the free-flowing, intangible nature of the creative process and place it into the more rigid confines of the law can be a challenging and complicated process. How can lawyers better address and understand the rapidly changing field of intellectual property law? What types of new processes and thought patterns can they adopt to keep up with technology, art and innovation in the information age?

I recently sat down with Professor Jeanne Fromer to discuss some of the intellectual property issues that she finds most vexing. In our conversations, Professor Fromer discussed her theory of incentives and how they influence the way copyright and patent law is crafted.

Professor Fromer is one of the most recent additions to the full-time faculty at NYU Law, where she is teaching Copyright Law and co-leading an Innovation Policy Colloquium. A graduate of Harvard Law School, she has a master’s degree in electrical engineering and computer science from MIT and has been a law clerk to Supreme Court Justice David Souter.

One of the main underlying theories of intellectual property law, Professor Fromer explains, is that it is a mechanism by which to incentivize artists and inventors to create and produce valuable works for society. But do the incentives work? It’s a tough question considering that we know very little about the creative process that we are trying to encourage.

Professor Fromer has sought to answer that question through several of her projects. In a 2010 article called “Psychology of Intellectual Property,” published in the Northwestern University Law Review, Professor Fromer looks at whether the differences in protectability standards between copyright and patent law are related to differences in the creative process. She found that while the overall creative process tends to look the same, our society is much more tolerant of big changes in technology and invention than we are in the artistic context.

This is because great shifts in technological advances that are happening “under the hood,” don’t require us to learn or understand something new, whereas large aberrations in a musical composition, which are central to the way we receive and utilize the work, require more thought. As a society, we value smaller more incremental steps for artistic works than we do in technological ones. This might be one reason why the standard for protection in copyright (originality) is so much lower than that for patent (novel, nonobvious, useful).

If the copyright bar is so low, how is it driving people to create? Professor Fromer explains that we need to engage more deeply with the latest research on psychology, sociology and creativity to gain a deeper understanding of how intellectual property law should be formed.

Professor Fromer explored her incentive theory further in an article called “Expressive Incentives in Intellectual Property,” published in 2012 in the Virginia Law Review. In it, she studies the relationship between the utilitarian and moral rights theories of intellectual property law. Usually seen as different systems, she found similarities in that both authors and inventors are driven by a passion to create. They both care deeply about their work and want it to be recognized and protected. Creators and innovators are not only motivated by pecuniary incentives, but also by the ability to have attribution and control over their work, and more generally, to have their personhood interests in the work recognized. Thus, intellectual property law should consider providing these types of expressive incentives instead of or in addition to traditional pecuniary incentives.

Intellectual property law already provides some expressive incentives. For instance, copyright law provides protection for an author’s work for the duration of her lifetime plus seventy years. Similarly, until very recently in patent law, when multiple people claimed to have invented the same or similar works, the first person to have invented the work would be awarded a patent, rather than the first person to have filed for it. Patent law also requires the actual inventor to be named in the patent, even if the patent rights belong to another entity. These incentives are critical to encouraging creativity in that they provide artists or inventors attribution for their work or protection during the creators’ lifetime, when their personhood interests are strongest.

I asked Professor Fromer for her recommendation for ways in which intellectual property law can better incorporate expressive incentives to effectuate its purpose. She noted that although there has been progress, so much data is still missing and so many questions remain unanswered. To begin answering these questions, people from various areas of study such as economics, psychology, and management need to come together and pool their knowledge.

To this end, Professor Fromer is currently working with Professor Christopher Buccafusco of Kent College of Law, Professor Zach Burns of Northwestern’s Kellogg School of Management, and NYU Law’s own Christopher Sprigman on a series of experiments aimed at understanding what incentivizes creativity. Some of the tasks are mathematical while others are verbal.

Professor Fromer believes that there will be a big shift toward allowing natural data to influence intellectual property law. What obstacles does she foresee in applying this data if it indicates that less protection is desirable? In Professor Fromer’s eyes, the political economy presents the greatest hurdle. Throughout the history of intellectual property law, there has been a ratcheting up of protection for creators. One country usually makes a move to increase protections and the others follow. To propose changes that would lessen protection in favor of providing other expressive incentives, for example, could be a major change and a hard sell.

Though powerful lobbying groups have historically fought for more protection, Professor Fromer notes that the conversation is more balanced now due in part to the changing interests of the software industry. Major interest groups like Google and other software companies are advocating for less stringent protection regimes. Additionally, public interest groups are gaining a stronger voice as well and have been able to provide another side to the debate.

Professor Fromer hypothesizes that the tenor of this debate will continue to change and, although it is harder to go against the momentum of reform that has always expanded protection, a greater focus on expressive incentives may provide a way to overcome this challenge. It might allow the law to provide greater protection in some ways, but less in others so that we are lessening protection in important ways without upsetting creators.

Samantha Schnier is a J.D. candidate, ’15, at the NYU School of Law.

more »