On the Shoulders of Giants or the Road Less Traveled?: an Experimental Approach to Sequential Innovation in Intellectual Property
Abstract: All creativity and innovation build on existing ideas. Authors and inventors adapt, improve, interpret, and refine the ideas that have come before them. The central task of intellectual property (IP) law is regulating this sequential innovation to ensure that initial creators and subsequent creators receive the appropriate sets of incentives. Somewhat surprisingly, patent and copyright law provide different solutions to this task: While copyright law assigns property rights over original and subsequent creativity to the original author, patent law splits property rights over inventions and their improvement between the original and subsequent inventors. Although many scholars have applied the tools of economic analysis to consider whether IP law is successful in encouraging cumulative innovation, that work has rested on a set of untested assumptions about creators’ behavior. This Article reports three novel creativity experiments that begin to test those assumptions. In particular, we study how creators decide whether to borrow from existing ideas or to innovate around them.
