Wednesday, December 02, 2020


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Excerpted From: Stephanie Plamondon Bair, Impoverished IP, 81 Ohio State Law Journal 523 (2020) (251 Footnotes) (Full Document)


StephaniePlamondonBairIf asked why we have Intellectual Property (IP) rights, most people will tell you that IP provides needed incentives--to create, to commercialize, to disclose creations--that are otherwise lacking for public goods. But other accounts of IP exist as well. One of the more intriguing conceptions of IP envisions it as a means of promoting distributive justice. While the manners in which IP might do so are manifold--by ensuring broad access to the products of intellectual labor, for example, or by encouraging technologies that have high social value strain of the literature focuses on how IP can promote distributive justice by broadening access to IP rights among poor and disadvantaged groups.

The view that IP rights can and should serve to advance distributive justice by giving disempowered groups a tool to take control of their futures has intuitive appeal. Economic and social inequality are a matter of growing public and political concern, and it is nice to think that IP could help remedy some of inequality's more troubling aspects--a kind of meritocratic equalizer to catapult talented individuals otherwise held back by society's inequities up and away from their disadvantaged backgrounds. Certain high-profile cases seem to bolster the claim: we see an Oprah Winfrey or a Jan Koum, each raised in humble circumstances and each now successful with the help of IP regimes, and are tempted to conclude that IP can achieve these outcomes on a larger scale.

But how realistic is this goal? Is it achievable either in theory or in practice? To answer these questions, we need to understand how the conditions of poverty interact with the prerequisites for IP participation. If the two are incompatible, the case for IP as a tool of distributive justice is weakened, because those we hope will benefit from IP will be limited in their ability to do so. Moreover, the precise nature of the interaction will tell us what, if anything, we can do about it. While some incompatibilities might be remedied by changing IP doctrine or procedure, others may be more existential in nature.

One such potential point of incompatibility arises at the behavioral level. Those who study the psychology of poverty know that poverty changes decision-making. But the literature has given little attention to how this altered thinking impacts creativity. When several strains of empirical evidence are considered together, however, one thing becomes clear: circumstances common in the lives of the poor impact decision-making in ways that make it more difficult to achieve the creative advances meaningful IP participation requires. For instance, when people have experienced the world as harsh and unfair and are subject to high levels of environmental stress--conditions disproportionally present in poor populations--they are more likely to employ so-called exploitative decision-making strategies, where they “stick to what they know,” versus explorative decision-making strategies, where they consider options about which they have less information strategies definitionally required for creative thinking. Another line of study shows that sleep deprivation--a condition empirically linked to low income-- leads to the privileging of habit-directed (and therefore, again, definitionally noncreative) behaviors over goal-directed behaviors. And while in some cases adversity may trigger and promote creative thinking, in general, the particular flavor of adversity accompanying poverty seems to suppress, rather than incite, the human drive to create.

This incompatibility between poverty and creative thinking appears to limit the potential for IP to serve as a meaningful tool of distributive justice. If those living in poverty tend to over-rely on decision-making strategies inconsistent with creativity, then, on the whole, they will be less able than their financially better-off counterparts to take advantage of the social and economic benefits IP participation has to offer. This is fundamentally inconsistent with the hope that IP can help remedy social and economic inequality. If anything, we should expect IP to exacerbate existing inequalities, because those already at a financial advantage are those best positioned to participate in IP and reap its benefits.

Moreover, unlike some of the other potential incompatibilities between poverty and IP--for example financial barriers, or doctrines that favor large moneyed actors over poorly financed individual creators insight that poverty interferes with creative thinking does indeed pose an existential threat to IP's viability as a tool of distributive justice. While IP doctrines can be changed, and financial barriers can be addressed by legal aid programs or changes in procedural requirements, the behavioral incompatibility between poverty and IP participation is different in kind. No matter how much we increase access to IP rights or tweak individual IP doctrines to make them fairer to low-income groups, the problem won't be remedied, because it's a problem of under-creation caused by poverty rather than a problem that is caused or can be fixed by IP itself.

This may seem like a dire conclusion, but in fact it is quite helpful, because it leads to several fundamental insights about the nature of IP and our current attempts to use it as a tool, not only for distributive justice, but also for achieving optimal levels of innovation.

First, the relationship between poverty and creativity suggests that no matter how noble our aspirations for IP, it is inherently ill-suited as a tool of distributive justice, insofar as that term is used to describe the appropriation of IP by poor populations to enhance their financial and social position. Rather than lament this fact, we can use the insight to direct our efforts at achieving distributive justice along more fruitful paths.

Second, the relationship between poverty and creativity helps explain observed inequalities within the IP system. Though empirical data are sparse, the numbers that do exist suggest that children from low-income groups are much less likely to go on to participate in IP in their lifetimes than children from higher income groups. This is a real problem, not just from a distributive justice perspective, but also for the dominant view that IP is about maximizing socially beneficial innovation. If certain groups are innovating at lower levels, it raises the possibility that we are falling short--either in absolute number or in the types of innovations being produced--of optimality. And though a host of reasons for why those from low-income brackets participate less in IP are easily called to mind, the behavioral literature contributes a plausible and consequential explanation that might otherwise be overlooked in the rush to point to more obvious structural and cultural culprits.

Third, the relationship between poverty and creativity prompts reflection on IP scholarship's treatment of incentives. In keeping with IP's dominant narrative, the scholarship is very much focused on questions relating to creative incentives. For example, do current IP doctrines provide the right balance of incentives? Are there other, better, ways beyond IP--like grants, or tax breaks, or even social norms provide individuals with these incentives? But what rarely gets mentioned is the possibility that some people--perhaps even large, identifiable groups of people, as here--may be unable to respond to whatever incentives we offer them, no matter how wonderful those incentives might be. IP and innovation scholars might thus begin thinking much more broadly and holistically about what we can do to promote innovation, rather than assuming that getting incentives right is the end of the story.

Along these lines, the relationship between poverty and creativity gives us some clues about how we might begin to do this. For example, if poverty does indeed interfere with creative thinking, then we might expect that interventions designed to combat poverty will have a beneficial effect on creativity and innovation. More broadly, it opens the door to considering nontraditional innovation-promoting policy levers--i.e., those that don't fit the standard incentive formulation of financial reward as innovation carrot. Especially given recent work that has called into question any simple relationship between financial incentives and innovation output, these nontraditional models might take on a larger role in future conversations about innovation policy levers. Examples of such policy levers might include universal basic income programs, policies designed to increase access to health care, or open-ended artistic or scientific grants that aren't contingent on completing any particular project. Fortuitously, many of these policy levers would also help realize the distributive justice outcomes some scholars wish to achieve through IP. Thus, rather than using IP as a tool of distributive justice, this Article suggests that we would be better off tackling distributive justice head-on--and that doing so should also help achieve the innovation-promoting aims traditionally relegated to IP.

The Article proceeds in three parts.

Part I recounts the traditional incentive formulation of IP, along with more recent calls to justify and conceive of IP systems as valuable mechanisms for achieving distributive justice.

To critically evaluate the claim that IP can indeed function as an effective tool of distributive justice by giving poor populations opportunities to accumulate wealth, Part II identifies and examines a potential point of incompatibility between poverty and IP participation based on the behavioral literature. The basic insight is that poverty changes decision-making. Part II extends the insight to the realm of creativity and concludes that conditions of poverty negatively impact creative decision-making and action.

Part III explores the theoretical and practical implications of that insight. The first, glaring implication is that IP may not be well-suited at all as a tool of distributive justice, for the simple reason that those we hope will benefit from IP are arguably the least able to do so. Second, the insight about poverty's impact on creative thinking has explanatory power, as scholars struggle to make sense of empirical data showing reduced IP participation among disadvantaged groups. Third, the relationship between poverty and creativity should prompt scholars to think beyond the traditional incentives-for-innovation model when considering how best to maximize socially beneficial creation. Creators do not live in a theoretical vacuum, and ostensibly extraneous circumstances in their lives could impact, for good or ill, their ability to respond to even the most well-designed innovation incentives. Finally, the relationship between poverty and creativity suggests that policy interventions designed to ease poverty's burden could also have beneficial effects on innovation. Continuing in this vein, it also suggests that additional policy levers with less-than-direct ties to the act of innovation may nevertheless be quite effective at promoting innovation--in part by reaching groups for whom the traditional incentives model has not proved effective.

[. . .]

A growing number of scholars think that IP should serve distributive justice goals. While this is an attractive idea, it is not clear that IP is actually a good mechanism for doing so. This Article has argued that, in fact, IP is probably not the best way to achieve distributive justice, at least in the sense of providing the poor with opportunities to accumulate wealth and improve their social status.

The reason lies partly in the psychology of poverty. Because poverty affects decision-making in ways that make creative thinking more difficult, IP seems to be inherently limited as a tool for escaping poverty. At the same time, expecting IP to be such a tool gives rise to its own set of evils, because it incorrectly assumes the poor can in fact take advantage of IP, and indirectly puts the blame on them when they don't.

These conclusions should be of interest not only to those who think of IP in distributive justice terms, but also to those who subscribe to IP's more traditional, utilitarian accounts. The psychology of poverty helps us understand why current levels of innovation are suboptimal and highlights a potential failure of the incentive model of innovation production. A solution to this failure is to start thinking beyond the traditional incentives-for-innovation model when considering how best to maximize socially beneficial creation. Fortuitously, doing so should help us achieve distributive justice goals much more efficiently than IP ever could.

Associate Professor of Law, BYU Law School.

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Vernellia R. Randall
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Professor Emerita of Law
The University of Dayton School of Law