Abstract

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The Central Role of Law as a Meta Method in Creativity and Entrepreneurship

A core theme of traditional intellectual property (IP) law, policy, and scholarship is its focus on incentivizing the creation of inventions and artistic works.  This story has never made much sense as many scientists, technologists, artists, and artisans create for purposes other than the IP rights they may receive.  But it also belies an unfortunate fixation on artifacts as the locus of human ingenuity.  This paper proposes that instead it is the methods of innovation that are the true locus of human progress.  Thus, from a historical perspective, one finds that the Scientific Revolution was a revolution in methods of inquiry just as the Renaissance was a revolution in methods of artistic and artisanal activities.  In fact, these overlapping pivotal developments in Western history now seem to be largely the result of a fruitful cross-pollination of methods from different fields (art utilizing developments in math and science and vice versa).  The innovation did not stop with methods of direct production of artistic, artisanal, scientific, or technological works however.  Perhaps most important from a long term perspective, the revolution in methods of the Renaissance and Early Modern periods also generated “meta methods” to create a supportive infrastructure for not only the creation of these kinds of new works and artifacts, but also for the successful development and dissemination/distribution of useful or usable embodiments of them.  Thus this period saw the creation of modern patent and copyright systems, as well as new business forms such as the joint stock corporation for risky, capital intensive ventures.  The genius of such law based meta methods was that they could support the ongoing evolution of human innovation and its exploitation, without being tied to any particular innovation.  In other words, they implicitly employ an evolutionary perspective that sees innovation as a method to develop artifacts that are suitable for a certain set of background conditions at a given time.  When the background changes, the artifacts likely must too.  Accordingly, an obsessive focus on “great works” – artifacts that stand the test of time – has obscured the proper role for innovation methods and meta methods.  At the same time, some of the most contentious issues in IP today involve exclusive rights to lower levels of these methods such as business and tax method patents.  This paper establishes the different levels of methods and meta methods, with special focus on the law based meta methods, in a way that illuminates critical policy decisions by ascribing some of them to the support of creation/invention and others to the support of entrepreneurship that translates the original creation/invention into usable, distributable embodiments.  In doing so, the paper affirms those who have argued that the existing IP systems are primarily directed to support the latter, not the former.  Finally, the paper explores the innovation represented by these law-based meta methods themselves and the implications these insights have for contemporary policy to foster creativity and entrepreneurship.