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Article

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Texas Law Review, Vol. 93, p. 1921, 2014

Abstract

In the United States, intellectual property (IP) law is intended to encourage the production of new creative works and inventions. Copyright and patent laws do this by providing qualifying authors and inventors with a bundle of exclusive rights relating to the use and development of their creations. Importantly, however, these fields differ greatly in the ways that they determine whether some new creation is sufficiently innovative to merit legal protection. Copyright law sets the creativity bar especially low for new works of authorship, whereas patent law demands that a putative inventor prove that her creation is highly innovative. Relatively little research has focused on whether the different IP thresholds affect the incentives and behavior of creators.

Legal scholarship on the effects of differing IP thresholds on creators has generally relied on standard economic assumptions about the way that people respond to incentives. Creators are assumed to be rational and to respond to increased incentives by producing more and better creations. According to this reasoning, because patent law requires more creativity as a precondition to the conferral of IP rights compared to what copyright law requires, creators subject to the patent regime will be encouraged to be more creative than those subject to the copyright regime.

Recent research in the social sciences, however, suggests that the connection between incentives and behavior — particularly with regard to creativity — is not always so straightforward. Although some research indicates that providing incentives to act creatively has the expected effect of increasing creativity, other research suggests that offering certain types of incentives can undermine creative behavior. For example, monetary incentives to perform creative tasks may dampen creativity. Moreover, and importantly for our purposes, increasing the magnitude of an incentive to be creative may not always lead to more or better behavior. Once creativity incentives are sufficiently salient or intense, there is a risk that people will be overly focused on achieving the incentive and “choke.”

In the series of experiments reported in this Article, we extend the research on the effects of incentives for creativity into the realm of intellectual property. Specifically, we test whether the existence of a creativity threshold that conditions entry into a prize lottery on meeting certain performance standards affects how creative people are. The experiments reported here involve various creativity tasks in which subjects are randomly assigned to conditions that are intended to model the different creativity thresholds employed by copyright and patent law. Doing so allows us to test whether the existence and nature of a threshold increases, decreases, or does not affect subjects’ creativity.

This research contributes to the growing debates about whether copyright law’s creativity threshold is set too low and should be increased and whether patent law’s creativity threshold is appropriately set. More broadly, this research adds to the growing literature in law, psychology, economics, and management on the effects of incentives on behavior.

Date of Authorship for this Version

7-2014

Keywords

intellectual property, copyright, patent, creativity, experiment, incentive, thresholds

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