Thursday, March 8, 2012

Gregory Mandel – To Promote the Creative Process: Intellectual Property and the Psychology of Creativity

Does intellectual property law promote creativity? Professor Gregory N. Mandel (Peter J. Liacouras Professor of Law and Associate Dean for Research, Temple University—Beasley School of Law) extensively explores the psychological effects of the patent and copyright systems and their impact on innovation in his article To Promote the Creative Process: Intellectual Property Law and the Psychology of Creativity, 86 Notre Dame L. Rev. 1999 (2011). In this article, Professor Mandel examines modern psychological research of various thought processes, motivation, and collaboration in an effort to reveal how intellectual property laws may affect the process of innovation.

Professor Mandel begins his analysis by identifying the different styles of innovation and thought-processes and discusses similarities between scientific and artistic creativity. Research has shown that technological achievement and innovation will often times require a fusion of divergent and convergent thought processes, varying in context. While patent law applies a uniform nonobviousness standard, Professor Mandel suggests that the different processes of innovation may be more efficiently promoted with separate and differing incentives.

Psychological research has revealed a strong positive correlation between intrinsically motivated work and the production of a more creative work product. Professor Mandel argues that if a patent or copyright could intrinsically motivate an individual, as opposed to simply being an extrinsic reward, creative achievements will become greater. Professor Mandel notes that creative efforts may be enhanced by patent law’s nonobviousness requirement, so long as it is not too low. He asserts that the famously low originality requirement in copyright law may detrimentally reduce creativity.

Professor Mandel recognizes the dynamic value of collaborative efforts among modern innovators. And he argues that the growing complexity of works demonstrate the critical need for multidisciplinary collaboration in numerous fields. Additionally, Professor Mandel states that extraordinary innovation is often the product of creative contributions from multiple individuals and cooperative integration. Professor Mandel reasons that greater collaboration promotes greater creativity. However, he recognizes that current joint creator laws have a disincentive effect that may discourage collaboration. Professor Mandel argues that a more equitable and efficient approach to promoting collaboration may lie in the proportional allocation of joint creator rights.

Professor Mandel concludes by discussing the complexity of motivating individuals involved in large-scale collaboration. He argues that because large-scale collaborative works have become more common, a proper understanding of motivational psychology is necessary for intellectual property law to more effectively promote creativity. Intellectual property law has long been premised upon economic and incentive theories. See e.g. Steve Calandrillo, An Economic Analysis of Intellectual Property Rights, 9 Fordham Intell. Prop. Media & Ent. L.J. 301 (1998); Mazer v. Stein, 347 U.S. 201, 219 (1954). However, modern scholars have increasingly argued that there are the shortcomings to such approaches and that intellectual property law must also consider psychological effects. See Eric Johnson, Intellectual Property and the Incentive Fallacy, Fla. St. U. L. Rev. (forthcoming); Jeanne Fromer, A Psychology of Intellectual Property, 104 Nw. U. L. Rev. 1441 (2010). The necessity for large-scale collaboration in a growing number of diverse fields makes the optimization of creation, and consequently a detailed comprehension of its interplay with intellectual property law, inherently valuable to the progress of innovation. Professor Mandel’s article demonstrates that psychological and economic analyses of intellectual property law are not mutually exclusive, but can be used synchronously to optimize the promotion of innovative progress.

Posted by Derik Sanders (, a 2014 Juris Doctor Candidate at SMU Dedman School of Law and research assistant to Professor Sarah Tran.

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