Following up on the discussion of IP's "negative spaces" by Jacob Loshin, Christopher Sprigman, Dotan Oliar, and others, Elizabeth Rosenblatt has published a paper offering a theory that brings together treatments of industries that seem to operate in IP negative space.
Several recent case studies have explored areas in which creation and innovation thrive without significant protection from intellectual property law. These include such diverse industries as fashion, cuisine, magic tricks, stand-up comedy, typefaces, open-source software, sports, wikis, academic science, and even roller derby pseudonyms. Mario Bagioli refers to these low-IP environments as existing in a state of “IP without IP”; Kal Raustiala and Chris Sprigman have popularized the term “negative space.”
Most scholarship in the area has focused on case studies of particular industries and social movements that occupy IP’s negative space. This paper looks deeper into the nature of IP’s negative space itself. First, the paper creates a taxonomy of IP’s negative space, dividing it into three categories: (1) doctrinal carve-outs, in which lawmakers have expressly excluded creations from IP protection; (2) doctrinal no-man’s land, where creations fall through the cracks of IP protection; and (3) areas of IP forbearance, in which creators could receive protection, but elect either not to seek protection or not to pursue infringers. The article then explores what makes any particular type of creation particularly conducive to low-IP treatment. The paper concludes that negative space is likely to arise under the following four (overlapping) conditions: (1) when creation is significantly driven by something other than exclusivity-based financial gain; (2) when granting exclusivity would significantly harm or deter other creation or innovation; (3) when the public interest in free access to information is very high; and/or (4) when the financial or personal cost of obtaining protection or pursuing infringers is predictably high compared to the benefit to be gained from exclusivity or damages.
Although IP’s negative space has heretofore been studied primarily on an industry-by-industry basis, the conditions that foster low-IP treatment are not specific to particular industries and may even change over the life of a particular work or invention. This paper suggests certain policy changes to foster creation in light of this insight.
The full text of the paper is not available from SSRN.
Comments