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261
THE PUBLIC PERCEPTION OF INTELLECTUAL PROPERTY
Gregory N. Mandel
*
Abstract
Though the success of intellectual property law depends upon its
ability to affect human perception and behavior, the public psychology
of intellectual property has barely been explored. Over 1,700 U.S.
adults took part in an experimental study designed to investigate
popular conceptions of intellectual property rights. Respondents’ views
of what intellectual property rights ought to be differed substantially
from what intellectual property law actually provides, and popular
conceptions of the basis for intellectual property rights were contrary to
commonly accepted bases relied upon in legal and policy decision-
making. Linear regression analysis reveals previously unrecognized
cultural divides concerning intellectual property law based upon
respondents’ income, age, education, political ideology, and gender.
INTRODUCTION .................................................................................... 262
I. INTELLECTUAL PROPERTY LAW ............................................ 265
A. Copyright and Patent Law ............................................ 266
B. Intellectual Property Policy .......................................... 268
C. Intellectual Property Debates ....................................... 271
D. Influence of the Public Psychology of
Intellectual Property ...................................................... 274
II. EXPERIMENTAL STUDIES ON THE PSYCHOLOGY OF
INTELLECTUAL PROPERTY ..................................................... 278
A. Methodology .................................................................. 278
B. Results ........................................................................... 279
1. Scenario One: Infringement ................................... 279
2. Scenario Two: Creativity Threshold ...................... 281
3. Scenario Three: Independent Creators ................... 282
* Peter J. Liacouras Professor of Law & Associate Dean for Research, Temple
University—Beasley School of Law. J.D., Stanford Law School; B.A., Wesleyan University. I
am grateful for very helpful comments on earlier drafts of this work from Barton Beebe, Chris
Buccafusco, Jeanne Fromer, Shubha Ghosh, Dave Hoffman, Tim Holbrook, Joe Miller, and
Kristina Olson, and for valuable feedback from participants at the American Psychological
Association’s Psychology-Law 2012 Annual Meeting, the 2012 Intellectual Property Scholars
Conference at Stanford Law School, the 2012 Mid-Atlantic Patents Works-in-Progress
Conference at American University College of Law, and the 2013 Tri-State IP Workshop at
NYU School of Law. I also want to thank Marisa Johns, Ed Pak, and Chad Stouffer for their
outstanding research assistance on this project. Finally, I am very grateful to SurveyMonkey for
its generous support of this research through providing the study participants.
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4. Scenario Four: Joint Creators ................................. 284
5. Basis for Intellectual Property Rights .................... 286
6. Preferences for the Strength of Intellectual
Property Rights ....................................................... 289
III. DISCUSSION ........................................................................... 292
A. Public Perception of Intellectual Property Rights
and the Law ................................................................... 292
B. Public Perception of Artistic Versus Inventive
Creativity ....................................................................... 297
C. The Basis for Intellectual Property Rights .................... 299
D. Intellectual Property Demographics ............................. 300
IV. THE PSYCHOLOGY OF OWNERSHIP ........................................ 305
CONCLUSION ........................................................................................ 308
INTRODUCTION
The success of intellectual property law depends upon its ability to
influence human behavior pursuant to the widely accepted incentive
theory of intellectual property. Under the incentive rationale,
intellectual property law is built on the premise that providing creators
with certain rights will induce them to produce, distribute, and
commercialize more intellectual works of greater creativity than they
otherwise would. Intellectual property law also depends on behavioral
effect for compliance. The ease of copying, enabled by modern
technological advances, combined with the high transaction costs of
enforcement, makes widespread voluntary compliance necessary for the
intellectual property system to function as desired.
Because intellectual property law is designed to operate through
producing a behavioral response, public understanding of intellectual
property law plays an integral role in the success or failure of the
intellectual property system. Public understanding can influence the
activities of potential intellectual property creators and users, as well as
the decision-making of jurors, judges, and legislators. It can also affect
issue framing and public discourse among voters, the media, and the
general public. Despite the central importance of public perception and
human behavior to the success of the intellectual property system,
popular understanding of intellectual property rights has barely been
explored. This article presents the first investigation of the relationship
between popular conceptions of what intellectual property rights should
be and what intellectual property rights actually are, across different
types of creative works. The results have important implications for
understanding compliance with intellectual property rights, how
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effectively intellectual property law promotes the production of creative
works, and how intellectual property law is applied. The results also
elucidate the ability of law to shape human perception and behavior
more generally.
1
Utilizing a series of intellectual property scenario experiments given
to a national sample of over 1,700 American adults, the study reported
here examines three primary issues: (1) whether and how popular
conceptions of intellectual property rights differ from actual intellectual
property law; (2) whether and how popular conceptions of intellectual
property rights vary between artistic versus technological creative
endeavors; and (3) how the popular understanding of the basis for
intellectual property rights compares to the primary rationale applied in
policy and legal decision-making.
The study results demonstrate that respondents’ views of what
should be protected by intellectual property rights differ substantially
from the actual provisions of the law. Public perception of what
intellectual property rights should be also varies, in an inconsistent
manner, between the areas of copyright and patent law. Because
intellectual property law is designed to induce certain behavior, the
public disconnect suggested by these results indicates that intellectual
property law may not be able to produce its desired effects concerning
either the promotion of creative activity or compliance with intellectual
property rights.
2
That is, people may not invest in, produce, or
commercialize creative activity to the extent anticipated by intellectual
property law, and may not comply with intellectual property law even in
situations where they intend to respect the rights of others.
The study results also reveal that popular conceptions of the basis for
intellectual property rights are contrary to commonly accepted bases
relied upon in legal and policy decision-making. Whereas intellectual
property law is designed based on an incentive theory of intellectual
property rights,
3
lay people understand intellectual property law to be
1. Cf. W. Jonathan Cardi, Randall D. Penfield & Albert H. Yoon, Does Tort Law Deter
Individuals? A Behavioral Science Study, 9 J.
EMPIRICAL LEGAL STUD. 567 (2012) (reporting
experimental studies on potential tort liability in an effort to examine the “widely accepted but
grossly undertested assumption that tort liability in fact deters tortious conduct”).
2. See Jeanne C. Fromer, Expressive Incentives in Intellectual Property, 98 V
A. L. REV.
1745, 1777 (2012) (“Incentives—the underpinning of intellectual property—work only if they
motivate authors and inventors to create (or indirectly stimulate others, like firms, to encourage
them to create).”); Mark D. Janis & Timothy R. Holbrook, Patent Law’s Audience, 97 M
INN. L.
REV. 72, 74–75 (2012) (discussing how a lack of awareness of patent law on the part of
potential creators complicates the incentive theory of patent law); Tom R. Tyler, Compliance
with Intellectual Property Laws: A Psychological Perspective, 29 N.Y.U. J. INT’L L. & POL.
219, 224 (1996) (“The effectiveness of intellectual property law is therefore heavily dependent
on gaining voluntary cooperation with the law.”).
3. See infra Section I.B.
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based on the natural entitlement of authors and inventors to their
intellectual creations.
4
While legal and political experts tend to view
intellectual property law from one perspective, the public sees it from
another. These findings have significant implications for intellectual
property policy, as the disconnect between public perception and
intellectual property rights can undermine the legitimacy and
effectiveness of the law.
5
The results of these experiments shed light on contemporary high-
profile intellectual property debates, such as battles concerning the Stop
Online Piracy Act
6
(SOPA) and PROTECT IP Act of 2011
7
(PIPA), the
six-year-long patent reform legislation debate in the U.S. Congress, and
numerous recent intellectual property cases before the Supreme Court.
Regression analysis of participant study responses reveals that having
lower income, being older, being more educated, and having less
experience with intellectual property all correlate with a desire for
stronger intellectual property protection. Further, for certain intellectual
property rights, conservatives prefer stronger intellectual property rights
than liberals, women prefer stronger rights than men, and minorities
prefer stronger rights than whites. These results indicate previously
unrecognized cultural divides over intellectual property that are
expected to shape the public discourse and outcomes of future
intellectual property debates.
Prior research has investigated a number of manners in which human
decision-making concerning intellectual property is “boundedly
rational.”
8
Because people are not perfect rational actors, this research
indicates, they will not make fully rational decisions concerning
intellectual property endeavors and activity. For example, it appears that
people tend to irrationally overvalue the quality of their own creations
due to endowment and creativity effects,
9
and cannot accurately
evaluate whether inventions merit patent protection due to the hindsight
4. Some scholars support this natural rights basis for intellectual property, as opposed to
the incentive basis. See infra Section I.B.
5. E.g., Robert MacCoun et al., Do Citizens Know Whether Their State Has
Decriminalized Marijuana? Assessing the Perceptual Component of Deterrence Theory, 5 R
EV.
L. & ECON. 347 (2009) (discussing lack of support for the theory that changes in the law will
produce corresponding changes in behavior, based on data concerning citizens’ perceptions of
marijuana possession legal penalties); cf. Tom R. Tyler, Psychological Perspectives on
Legitimacy and Legitimation, 57 A
NN. REV. PSYCHOL. 375, 380–82 (2006) (discussing how the
public’s perception of governmental institutions as legitimate contributes to effective democratic
governance).
6. H.R. 3261, 112th Cong. (1st Sess. 2011).
7. S. 968, 112th Cong. (1st Sess. 2011).
8. See infra Part IV.
9. Christopher Buccafusco & Christopher Jon Sprigman, The Creativity Effect, 78 U.
CHI. L. REV. 31, 31–32 (2011).
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bias.
10
The studies reported here take these concerns a step further. Even if
we could de-bias the cognitive heuristics that cloud intellectual property
decision-making, human beings still would not operate as desired
rational actors in the intellectual property sphere because most people
do not comprehend what the law is and do not concur with the rationale
on which intellectual property laws are based. As a result, the
intellectual property system will have a hard time functioning as
designed. A behavioral system cannot operate properly if the actors
within the system function pursuant to a different set of behavioral
determinants than the model on which the system is founded.
11
Part I of this Article provides an introduction to patent and copyright
law and policy. It also explains why the public psychology of
intellectual property is crucial to the success of the intellectual property
system. Part II reports the methodology and results of a series of four
intellectual property scenario experiments designed to investigate the
public psychology of intellectual property. Part III discusses the
implications of the experimental results for the existing behavioral
model of intellectual property law and analyzes the repercussions of this
new understanding for current intellectual property debates. Part IV of
this Article places the current intellectual property study within a
broader field of literature on the psychology of ownership, a field that,
until now, has largely focused on the ownership of physical property.
This Article concludes with recommendations for further avenues of
research.
I. INTELLECTUAL PROPERTY LAW
Evaluating the relationship between public perception and
intellectual property rights requires understanding intellectual property
law and policy in the first instance. This section provides a brief
introduction to intellectual property law and how it is expected to
function by affecting the behavior of both the creators and users of
intellectual property. The interplay between intellectual property law
and public perception is highlighted using examples from several
current, high-profile intellectual property law debates.
12
The section
concludes with a discussion of how the public psychology of
intellectual property rights mediates the success of the intellectual
property system through its influence upon intellectual property
10. Gregory N. Mandel, Patently Non-Obvious: Empirical Demonstration That the
Hindsight Bias Renders Patent Decisions Irrational, 67 O
HIO ST. L.J. 1391, 1393–95 (2006).
11. See Ori Friedman, First Possession: An Assumption Guiding Inferences About Who
Owns What, 15 PSYCHONOMIC BULL. & REV. 290, 290 (2008) (noting that “[o]wnership of
property is an important determinant of behavior”); see also Tyler, supra note 2, at 224.
12. See infra Section I.C.
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creators, users, jurors and judges, legislators, and the general public.
A. Copyright and Patent Law
The Constitution grants Congress patent and copyright authority in a
single Intellectual Property Clause, and each body of law is directed to
the same constitutional purpose: “promot[ing] . . . [p]rogress.”
13
Congress passed the first patent act at the beginning of its first term in
1790,
14
and the first copyright act one month later.
15
Despite these
similar origins, there is a striking divergence between the rights
accorded to authors and artists (protected by copyright law) and the
rights accorded to inventors (protected by patent law).
16
Copyright law protects original works of authorship, including
literary, dramatic, musical, and artistic work.
17
Patent law protects
product and process inventions.
18
These two fields of intellectual
property law differ in the methods for acquiring rights, standards for
obtaining protection, rights afforded by an intellectual property grant,
and the scope and duration of such rights.
Copyright law provides automatic protection for an original work of
authorship the moment the work is fixed in a tangible medium of
expression, such as being written down or recorded.
19
No formal
application, registration, or publication is required.
20
Patent law, on the
other hand, requires an applicant to go through a lengthy and expensive
patent prosecution process to convince the United States Patent and
Trademark Office that the invented subject matter satisfies a series of
validity requirements.
21
In order to secure a patent, an applicant must
13. U.S. CONST. art. I, § 8, cl. 8 (“[The Congress shall have Power] [t]o promote the
Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries[.]”).
14. An Act to promote the progress of useful Arts, ch. 7, § 1, 1 Stat. 109 (1790) (repealed
1793).
15. An Act for the encouragement of learning, by securing the copies of maps, charts, and
books, to the authors and proprietors of such copies, during the times therein mentioned, ch. 15,
§ 1, 1 Stat. 124 (1790) (repealed 1802).
16. The study reported here focuses on patent and copyright law, leaving trademark law,
the third primary strand of intellectual property, to future work. While patent and copyright law
are based on incentive models, trademark law is generally recognized to have a different
foundation based on reducing consumer search costs, and therefore raises different issues
concerning public perceptions.
WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC
STRUCTURE OF INTELLECTUAL PROPERTY LAW 166–67 (2003).
17. 17 U.S.C. § 102 (2006).
18. 35 U.S.C. § 101 (2006).
19. 17 U.S.C. § 102.
20. 17 U.S.C. §§ 102, 408 (2010). To bring an infringement action, the copyright owner
must ordinarily have registered the copyright with the U.S. Copyright Office. Id. § 411(a).
21. 35 U.S.C. § 131; John Gladstone Mills III et al., Relation Between Invention and
Patents, in P
ATENT LAW BASICS § 1:25 (2012).
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demonstrate, among other things, that the invention is new, useful, and
nonobvious, and must adequately disclose how to make and use the
invention.
22
In contrast, in order to merit a copyright, an author is only
required to meet a de minimis originality standard.
23
Copyright protection, though easier to obtain, is narrower in scope
than patent protection. A copyright protects its owner against another
person copying (either wholly or to create a derivative work),
distributing, or publicly performing or displaying the copyrighted work
itself.
24
A copyright does not provide protection against another person
independently creating the same or similar work and distributing or
displaying that independently created work.
25
A patent, conversely,
vests its owner with the right to prevent anyone else from making,
using, selling, offering for sale, or importing the patented subject
matter.
26
Thus, a patent protects against independent creation, while a
copyright does not. Further, a patent grants rights to a field of subject
matter, not just an individual work. The scope of the patent-protected
field is defined by a patent’s claims that, in almost every case, are
broader than the individual embodiment of an invention.
27
A copyright,
on the other hand, only protects against copying the particular work; it
does not establish a sphere of protection.
28
Copyright protection lasts much longer than patent protection. A
copyright, in general, lasts for the life of the author plus an additional
seventy years.
29
A patent term runs twenty years from the date of the
patent application,
30
providing an average of about seventeen years of
protection from the time of a patent grant.
31
Neither term can be
renewed.
32
The broad differences between copyright and patent law are due to a
variety of factors, including path-dependent histories, differing subject
22. 35 U.S.C. §§ 101–03, 112.
23. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991) (“[T]he requisite
level of creativity is extremely low; even a slight amount will suffice.”); see also Bleistein v.
Donaldson Lithographing Co., 188 U.S. 239, 250 (1903) (“[A] very modest grade of art has in it
something irreducible, which is one man’s alone. That something he may copyright unless there
is a restriction in the words of the act.”).
24. See 17 U.S.C. § 106.
25. E.g., Feist, 499 U.S. at 361; see also Bleistein, 188 U.S. at 249.
26. 35 U.S.C. § 271.
27. Laitram Corp. v. Cambridge Wire Cloth Co., 863 F.2d 855, 865 (Fed. Cir. 1988); Tex.
Instruments, Inc. v. U.S. Int’l Trade Comm’n, 805 F.2d 1558, 1562–63 (Fed. Cir. 1986).
28. 17 U.S.C. § 102; H.R. REP. NO. 94-1476, at 56–57 (1976).
29. 17 U.S.C. § 302(a).
30. 35 U.S.C. § 154(a)(2).
31. See 35 U.S.C. § 154(c)(1).
32. 17 U.S.C. § 302; Edward C. Walterscheid, The Remarkable—and Irrational—
Disparity Between the Patent Term and the Copyright Term, 83 J.
PAT. & TRADEMARK OFF.
SOC’Y 233, 255–57 (2001).
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matter, and differing political economies. In addition, I have argued in
previous work that certain of these differences map remarkably
consistently onto (now largely debunked) social stereotypes about
differences between right-brain artists and left-brain inventors, and that
such socio-cultural creativity stereotypes have influenced patent and
copyright doctrine.
33
Regardless of the basis for the divergence, the
patent and copyright systems function very differently in both the
acquisition and scope of rights provided by an intellectual property
grant.
B. Intellectual Property Policy
Despite the substantial doctrinal differences between copyright and
patent law, there is significant convergence in legal and policy analysis
concerning the objectives of the copyright and patent systems and how
these systems are expected to function. Consistent with the
Constitution’s mandate that the power to enact intellectual property
laws is granted in order to “promote the [p]rogress,”
34
both Congress
35
and the Supreme Court
36
have repeatedly explained that intellectual
property law exists to incentivize authors and inventors to produce and
distribute creative works. This utilitarian incentive theory of intellectual
property law is largely shared by numerous experts in a variety of
fields.
37
33. Gregory N. Mandel, Left-Brain Versus Right-Brain: Competing Conceptions of
Creativity in Intellectual Property Law, 44 U.C.
DAVIS L. REV. 283, 322–25 (2010).
34. U.S. C
ONST. art. I, § 8, cl. 8.
35. See N
ONOBVIOUSNESS—THE ULTIMATE CONDITION OF PATENTABILITY (J. Witherspoon
ed., 1978) [hereinafter N
ONOBVIOUSNESS] (discussing the legislative history of the 1952
amendments to the Patent Act, which were based on utilitarian incentive objectives); Joe Matal,
A Guide to the Legislative History of the America Invents Act: Part I of II, 21 FED. CIR. BAR. J.
435, 435 (2012) (discussing the legislative history of the America Invents Act).
36. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1305 (2012)
(“[T]he promise of exclusive rights provides monetary incentives that lead to creation,
invention, and discovery.”); Eldred v. Ashcroft, 537 U.S. 186, 223 (2003) (Stevens, J.,
dissenting) (“[T]he grant of exclusive rights [in the Intellectual Property clause] is intended to
encourage the creativity of ‘Authors and Inventors.’”); Feist Publ’ns, Inc. v. Rural Tel. Serv.
Co., 499 U.S. 340, 349 (1991) (“The primary objective of copyright is not to reward the labor of
authors, but ‘[t]o promote the Progress of Science and useful Arts.” (alteration in original));
Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985) (“[C]opyright
supplies the economic incentive to create and disseminate ideas.”); Sony Corp. of Am. v.
Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (granting patents and copyrights is
“intended to motivate the creative activity of authors and inventors”); United States v.
Paramount Pictures, Inc., 334 U.S. 131, 158 (1948) (“The sole interest of the United States and
the primary object in conferring the [copyright] monopoly lie in the general benefits derived by
the public.” (quoting Fox Film Corps. v. Doyal, 286 U.S. 123, 127 (1932)).
37. Fromer, supra note 2, at 1750–51; e.g., id. at 1746 (“According to the dominant
American theory of intellectual property, copyright and patent laws are premised on providing
creators with . . . incentive[s] to create artistic, scientific, and technological works . . . .”);
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The incentive theory of intellectual property law is based on the
rationale that, absent intellectual property protection, there would be a
market failure in innovation.
38
This would occur because new
inventions and artistic works are generally nonexcludable and
nonrivalrous.
39
Absent intellectual property protection, creators could
not prevent the widespread copying and distribution of new inventions
and works of authorship once they were publically disclosed. Authors
and inventors, therefore, could not profit from the full extent of their
intellectual creation’s use or social value. As a result, potential
inventors and authors would be less inclined to invest substantial effort
and resources into intellectual creation in the first instance.
40
Too little
innovation and artistic creation would occur.
Intellectual property protection seeks to solve this potential market
failure, according to incentive theory, by granting creators certain rights
in their creative work.
41
These intellectual property rights prevent others
from copying or distributing the work without permission. Intellectual
property law makes creative works excludable, which allows the
producer to capture greater profits from an intellectual creation. This
brings the private benefits of a creative work more in line with its social
value.
42
Intellectual property rights thus provide an economic incentive
Christopher Buccafusco & Christopher Sprigman, Valuing Intellectual Property: An
Experiment, 96 C
ORNELL L. REV. 1, 3 (2010) (“IP, perhaps more than any other substantive
area of law, is grounded in the rational actor model . . . . [a]ccording [to which] the monopolistic
rights granted by copyrights and patents exist to provide economic incentives to creators.”);
L
ANDES & POSNER, supra note 16, at 4 (“[I]t is acknowledged that analysis and evaluation of
intellectual property law are appropriately conducted within an economic framework that seeks
to align that law with the dictates of economic efficiency.”).
38. See R
OBERT P. MERGES ET AL., INTELLECTUAL PROPERTY IN THE NEW
TECHNOLOGICAL AGE 12–13 (5th ed. 2010) (“The result [of not providing exclusive rights in
intellectual property], according to economic theory, would be an underproduction of books and
of other works of invention and creation with similar public goods characteristics.”); cf. Harper
& Row Publishers, 471 U.S. at 558 (“[T]he Framers intended copyright itself to be the engine of
free expression. By establishing a marketable right to the use of one’s expression, copyright
supplies the economic incentive to create and disseminate ideas.”); Mazer v. Stein, 347 U.S.
201, 219 (1954) (“The economic philosophy behind the clause empowering Congress to grant
patents and copyrights is the conviction that encouragement of individual effort by personal gain
is the best way to advance public welfare through the talents of authors and inventors in
‘Science and useful Arts.’”).
39. M
ERGES, supra note 38, at 12; Shyamkrishna Balganesh, The Obligatory Structure of
Copyright Law: Unbundling the Wrong of Copying, 125 H
ARV. L. REV. 1664, 1670 (2012).
40. Fromer, supra note 2, at 1751; Christopher A. Cotropia & James Gibson, The Upside
of Intellectual Property’s Downside, 57 UCLA L. REV. 921, 926–27 (2010) (“If innovators can
only recover their marginal cost of production, they will lack the incentive to create the
information good in the first place.”).
41. See Balganesh, supra note 39, at 1670.
42. See Brett M. Frischmann & Mark A. Lemley, Spillovers, 107 C
OLUM. L. REV. 257,
276 (2007); see also Cotropia & Gibson, supra note 40, at 926–27.
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to induce potential authors and inventors to create, distribute, and
commercialize more creative works than they would absent intellectual
property protection.
43
Though the incentive basis is the dominant conceptual basis for
intellectual property law, it is not the only accepted basis. Other theories
of intellectual property rights have also been propounded. Some
scholars rely on John Locke’s labor theory of property rights and other
similar concepts to argue that authors and inventors should hold natural
rights in their creative works.
44
This equitable perspective views
individuals as automatically entitled to the fruits of their efforts.
45
Natural rights theory supports intellectual property rights on the basis
that a creator is morally entitled to control the copying and distribution
of inventions or artistic creations produced as a result of the creator’s
own labor and effort.
46
Other scholars contend, based on reasoning from Kant and Hegel,
that intellectual property rights can serve an expressive function for
creators, allowing greater human flourishing and cultural development,
and should be protected for this reason.
47
Just as individuals use
physical property, such as homes or clothing, to express their
43. There are a number of variations on the incentive theory of intellectual property,
particularly concerning what the law actually is or may be designed to incentivize, including the
creation, distribution, or commercialization of intellectual works. See generally Rebecca S.
Eisenberg, Patents and the Progress of Science: Exclusive Rights and Experimental Use, 56 U.
CHI. L. REV. 1017 (1989) (discussing various incentive theories of patent law). The differences
among these various incentive theories are not significant for the purposes of this Article.
44. See, e.g., Wendy J. Gordon, A Property Right in Self-Expression: Equality and
Individualism in the Natural Law of Intellectual Property, 102 Y
ALE L.J. 1533, 1540 (1993).
See generally Justin Hughes, The Philosophy of Intellectual Property, 77 G
EO. L.J. 287, 296–
330 (1988) (discussing Locke’s labor theory as it relates to intellectual property rights). Some
scholarship not only supports the natural rights theory of intellectual property, but makes a
historical argument that this was an originally understood basis for such rights. P
AUL CLEMENT
ET AL
., THE CONSTITUTIONAL AND HISTORICAL FOUNDATIONS OF COPYRIGHT PROTECTION 1
(2012) (“[F]rom its inception[,] copyright was seen not merely as a matter of legislative grace
designed to incentivize productive activity, but as a broader recognition of individuals’ inherent
property right in the fruits of their own labor.”); Adam Mossoff, Rethinking the Development of
Patents: An Intellectual History, 1550–1800, 52 HASTINGS L.J. 1255, 1257 (2001) (“It is my
intention, nonetheless, to offer a modest challenge to the prevailing view that the ideas of the
natural rights philosophers did not influence the early development of patent law.”).
45. R
OBERT P. MERGES, JUSTIFYING INTELLECTUAL PROPERTY 33–41 (2011).
46. See Gordon, supra note 44, at 1543 (“[A]ll persons have a duty not to interfere with
the resources others have appropriated or produced by laboring on the common. This duty is
conditional, and is a keystone in the moral justification for property rights.” (footnote omitted));
Hughes, supra note 44, at 297 (“Locke proposes that . . . there are enough unclaimed goods so
that everyone can appropriate the objects of his labors without infringing upon goods that have
been appropriated by someone else.”).
47. See, e.g., Gordon, supra note 44, at 1535–36; Margaret Jane Radin, Market-
Inalienability, 100 H
ARV. L. REV. 1849, 1851–52 (1987). See generally Hughes, supra note 44,
at 330–65 (discussing Hegel’s personality justification for intellectual property rights).
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personality,
48
an individual’s intellectual creations may be used in a
similar manner.
Consistent with these alternative notions of intellectual property
rights, several European countries endow authors with significant
“moral rights” in their works.
49
These moral rights can include a right of
attribution (requiring that an author of a work be identified) and a right
of integrity (permitting the author of a work to prevent others from
distorting the work in a way that would injure the author’s reputation).
50
In the United States, however, alternative foundations for intellectual
property rights tend to play less of a role than incentive-based rationales
in most expert and policy discourse concerning the actual operation and
scope of intellectual property law.
51
C. Intellectual Property Debates
Considering their similar histories and objectives, it is striking how
little patent law and copyright law cohere. Their broad doctrinal
differences are often accepted without question in many intellectual
property law circles. This is likely a result of the long-standing nature of
the differences and their being the status quo for those trained in
intellectual property doctrine and policy. Both the doctrinal structure
and the policy basis for intellectual property law, however, are currently
under pressure due to technological evolution. This evolution has
resulted in the development and distribution of new types of creative
works, along with new means for copying and disseminating them.
These changes have manifested in several recent, high-profile debates
concerning copyright infringement on the Internet, patent reform
legislation, and a number of intellectual property cases before the
Supreme Court.
48. Nestor M. Davidson, Property and Identity: Vulnerability and Insecurity in the
Housing Crisis, 47 H
ARV. C.R.-C.L. L. REV. 119, 119–20 (2012).
49. E.g., Jane C. Ginsburg, “European Copyright Code”—Back to First Principles (With
Some Additional Detail), 58 J. COPYRIGHT SOC’Y U.S.A. 265, 278–80 (2010); ROBERTA
ROSENTHAL KWALL, THE SOUL OF CREATIVITY: FORGING A MORAL RIGHTS LAW FOR THE
UNITED STATES 37–47 (2010).
50. Ginsburg, supra note 49, at 278–80.
51. See, e.g., Fromer, supra note 2, at 1750–51 (“The Supreme Court, Congress, and
many legal scholars consider utilitarianism the dominant purpose of American copyright and
patent law.” (footnote omitted)); John P. Conley & Christopher S. Yoo, Nonrivalry and Price
Discrimination in Copyright Economics, 157 U.
PA. L. REV. 1801, 1802 (2009) (“[B]oth sides
[in debates over copyright laws] generally frame the arguments in largely economic terms.”);
Dan L. Burk & Mark A. Lemley, Policy Levers in Patent Law, 89 VA. L. REV. 1575, 1597–99
(2003) (“To a greater extent than any other area of intellectual property, courts and
commentators widely agree that the basic purpose of patent law is utilitarian: We grant patents
in order to encourage invention. While there have been a few theories of patent law based in
moral right, reward, or distributive justice, they are hard to take seriously as explanations for the
actual scope of patent law.” (footnotes omitted)).
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The Stop Online Piracy Act
52
(SOPA) and PROTECT IP Act of
2011
53
(PIPA) were the House and Senate versions, respectively, of
bills designed to thwart the widespread availability of movies, music,
and other media accessible on the Internet in violation of copyright
law.
54
These bills were promoted by large media lobbies, including the
Motion Picture Association of America and the Recording Industry
Association of America, as well as by the United States Chamber of
Commerce.
55
SOPA and PIPA were intended to operate by penalizing
or prohibiting Internet search engines and web payment sites from
providing access or payment to websites distributing material in
violation of United States copyright laws.
56
Initially, SOPA and PIPA had widespread, bipartisan support in
Congress and appeared headed towards adoption as legislation.
57
In
December 2011, however, a collection of technology and Internet
companies came out in strong opposition to the bills based on concerns
about Internet censorship, the impact of the bills on free speech, and the
potential for the legislation to stifle online innovation.
58
Congressional
leaders were taken aback by the rapid groundswell of public opposition
to SOPA and PIPA, and in January 2012, they indefinitely postponed
votes and other action on the legislation.
59
This series of events may
have been caused in part by the disconnect between expert and lay
perspectives on intellectual property. The legislative debates concerning
reform in this area are not likely over. Media piracy remains a
significant challenge for certain industries, and concerns about how to
address copyright infringement on the Internet continue to fester, raising
the likelihood that Congress will consider revised versions of SOPA and
PIPA in the future.
60
52. Stop Online Piracy Act, H.R. 3261, 112th Cong. (1st Sess. 2011).
53. Preventing Real Online Threats to Economic Creativity and Theft of Intellectual
Property Act of 2011, S. 968, 112th Cong. (1st Sess. 2011).
54. Jenna Wortham, A Political Coming of Age for the Tech Industry, N.Y.
TIMES (Jan.
17, 2012), http://www.nytimes.com/2012/01/18/technology/web-wide-protest-over-two-
antipiracy-bills.html.
55. Id.
56. H.R. 3261, 112th Cong. §§ 102(c)(1), (c)(2)(A)(i), (c)(2)(B)–(C)(i), (c)(4)(A) (1st
Sess. 2011); S. 968, 112th Cong. §§ 3(d)(1), (d)(2)(C)–(D), (e)(1) (1st Sess. 2011).
57. Jonathan Weisman, After an Online Firestorm, Congress Shelves Antipiracy Bills,
N.Y.
TIMES (Jan. 20, 2012), http://www.nytimes.com/2012/01/21/technology/senate-postpones-
piracy-vote.html; see, e.g., Edward Wyatt, Lines Drawn on Antipiracy Bills, N.Y.
TIMES (Dec.
14, 2011), http://www.nytimes.com/2011/12/15/technology/lines-are-drawn-on-legislation-
against-internet-piracy.html.
58. Wyatt, supra note 57; Wortham, supra note 54.
59. Weisman, supra note 57.
60. See Amy Chozick, Tech and Media Elite are Likely to Debate Piracy, N.Y.
TIMES
(July 9, 2012), http://www.nytimes.com/2012/07/10/business/media/tech-and-media-elite-are-
likely-to-debate-piracy.html.
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Patent legislation has also been a recent hot topic. In September
2011, Congress passed the America Invents Act (AIA),
61
introducing
the most significant statutory changes to patent law in over half a
century. The AIA represents the culmination of six years of vociferous
patent reform debates in Congress.
62
These debates pitted some of
America’s largest industries against each other, as the software and
information technology industries began to see the patent system as
producing a drag on innovation, while the pharmaceutical and
biotechnology sectors feared that any weakening of patent laws would
wreak havoc on innovation in their fields.
63
The debates over patent
reform made it clear that different industries interact with the patent
system in different ways, and that patent law affects innovation in
different industries in different manners.
Concurrent with these legislative activities, the Supreme Court has
been active in the intellectual property arena as well. Issues in recent,
hotly-debated cases include copyright liability for peer-to-peer file
sharing,
64
the types of subject matter eligible for patent protection,
65
whether copyright protection can be extended to works already in the
public domain,
66
reconsideration of the inventiveness standard for
patent protection,
67
and the remedies for patent infringement.
68
Numerous amicus briefs were filed in each of these cases, many
concerning the potential effect of a decision on the broader functioning
of the patent or copyright systems,
69
and these cases received more
61. America Invents Act, S. 23, 112th Cong. (1st Sess. 2011); Leahy-Smith America
Invents Act, H.R. 1249, 112th Cong. (1st Sess. 2011).
62. See DAN L. BURK & MARK A. LEMLEY, THE PATENT CRISIS AND HOW THE COURTS
CAN SOLVE IT 4, 100 (2009).
63. Id. at 100–01.
64. MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 936–37 (2005) (holding that
distributors of peer-to-peer file sharing software can be liable for copyright infringement if
“affirmative steps [are] taken to foster infringement”).
65. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1294 (2012)
(holding that a method for obtaining correlations between blood test results and patient heath
was not patent-eligible subject matter because it incorporates a law of nature); Bilski v. Kappos,
130 S. Ct. 3218, 3229–30 (2010) (holding that a method for hedging losses through investments
was not patent-eligible subject matter because it was an abstract idea).
66. Golan v. Holder, 132 S. Ct. 873, 878 (2012) (holding that Congress can take works
out of the public domain for purposes of copyright and patent protection).
67. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 419-20 (2007) (effectively increasing
the stringency of the nonobviousness patent requirement).
68. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 392-94 (2006) (holding that patent
owners are not necessarily entitled to injunctions for patent infringement).
69. E.g., Brief of Amicus Curiae Sharman Networks Ltd. in Support of Respondents,
MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (No. 04-480), 2005 WL 508106, at
*5; Brief of Amicus Curiae Am. Intellectual Prop. Law Ass’n in Support of Respondent, Mayo
Collaborative Servs v. Prometheus Labs, Inc., 132 S. Ct 1289 (2011) (No. 10-1150), 2011 WL
5373692, at *2-3; Brief of Am. Bar Ass’n as Amicus Curiae in Support of Respondents, Golan
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media attention than almost any other intellectual property cases in
history.
Each of these intellectual property debates focuses on how well
intellectual property law serves its traditional incentive function, and on
what effects changes to the law would have on the investment,
production, and distribution of creative works. The debates, however, in
general largely assume fully informed rational actors making decisions
about how much time, energy, and resources to invest in creative
efforts, about whether to respect the intellectual property rights of
others, and about how to decide intellectual property cases. Whether
these assumptions are accurate depends, in part, on public perception
and understanding concerning the basis for and manner of intellectual
property ownership.
D. Influence of the Public Psychology of Intellectual Property
The public psychology of intellectual property rights matters because
this perception will influence the behavior of numerous human actors
throughout the intellectual property system.
70
Public perception and
understanding is pertinent to varying degrees in other fields of law as
well, but it rarely plays as significant a role as it does for intellectual
property. While intellectual property law must affect human psychology
and behavior ex ante in order to function as designed, most other legal
regimes can achieve significant objectives after the fact. For example,
criminal law can provide retribution, restraint, and rehabilitation;
71
tort
law can compensate victims of accidents;
72
statutes of limitations can
foreclose claims;
73
and environmental law can require remediation
74
—
v. Holder, 132 S. Ct. 873 (2011) (No. 10-545), 2011 WL 3561887, at *4-5; Brief for Practicing
Patent Attorneys as Amici Curiae in Support of Respondents, KSR Int’l Co. v. Teleflex, Inc.,
550 U.S. 398 (2006) (No. 04-1350), 2006 WL 2967756, at *1-2; Brief for United States as
Amicus Curiae Supporting Respondent, eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388
(2006) (No. 05-130), 2006 WL 622120, at *1.
70. See, e.g., MacCoun et al., supra note 5, at 347 (discussing how public perception of
marijuana laws will affect behavioral decisions concerning compliance).
71. Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as
Criminal Justice, 114 HARV. L. REV. 1429, 1440–41 (2001) (discussing retribution, restraint,
and rehabilitation as various goals of criminal law).
72. W.
PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 4 (W. Page
Keeton ed., 5th ed. 1984) (recognizing compensation as “a powerful factor influencing tort
law”).
73. E.g., 18 U.S.C. § 3282 (2006) (codifying federal statute of limitations for noncapital
crimes); W
ILLIAM BALLANTINE, A TREATISE ON THE STATUTE OF LIMITATIONS (21 JAC. 1. C.
16.) 1-5 (1810) (discussing historic statute of limitations law).
74. W
ILLIAMS H. RODGERS, JR., ENVIRONMENTAL LAW 683 (2d ed. 1994) (identifying
remediation of contamination as “[a]n overriding purpose of CERCLA [the Comprehensive
Environmental Response, Compensation and Liability Act, commonly known as Superfund]”);
CERCLA Overview,
U.S. ENVTL. PROTECTION AGENCY, http://www.epa.gov/superfund/policy/ce
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all ex post. Public perception is also less important in fields where the
law is intended to apply primarily to sophisticated actors with particular
knowledge of the applicable law, such as for a plethora of regulatory
law in fields as diverse as health law,
75
securities law,
76
communications law,
77
and environmental law.
78
The incentive structure of intellectual property law, on the other
hand, can succeed only if it affects human perception and consequently
human behavior ex ante. This study, therefore, embarks on a new line of
research to investigate the potential for intellectual property law to have
its desired effect, focusing first on general public perception. Public
perception of intellectual property rights is expected to represent the
perspectives, and therefore influence the actions of, many potential
intellectual property creators, users, jurors and judges, and legislators.
Each of these categories of actors is discussed in turn.
First, public perception of intellectual property represents the
perspective of a significant portion of potential intellectual property
creators, and is expected to affect this population’s decisions concerning
what activities they will engage in. While some potential intellectual
property producers will have sophisticated knowledge of intellectual
property law, a substantial pool of creators is expected to operate on the
basis of general public understanding. This pool includes many
individual creators, who generally do not have sophisticated knowledge
of intellectual property law, but still make substantial contributions to
valuable copyright and patent activity.
79
This pool also includes many
creators and decision makers at smaller companies, such as start-up
rcla.htm (last visited Feb. 3, 2014).
75. E.g., Federal Food, Drug, and Cosmetics Act, 21 U.S.C. §§ 351-60 (2006) (providing
disclosure and commercialization requirements for pharmaceutical manufacturers).
76. E.g., Securities Exchange Act of 1934, Pub. L. No. 73-291, 48 Stat. 881-909
(codified at 15 U.S.C. §§ 78a-78nn (2006)); Securities Act of 1933, Pub. L. No. 73-22, 48 Stat.
74 (codified as amended at 15 U.S.C. §§ 77a-77aa (2006)) (providing regulations for securities
traders).
77. E.g., Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified
throughout Title 47 of the U.S.C.) (providing a variety of disclosure and regulatory requirements
for firms in the telecommunications industry).
78. E.g., Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.
§§ 11001–11050 (2006) (requiring owners and operators of facilities using toxic chemicals to
disclose certain information about the use); Resource Conservation and Recovery Act, 42
U.S.C. §§ 6901–6992k (2006) (governing the disposal of hazardous waste by hazardous waste
generators); Summary of the Resource Conservation and Recovery Act, U.S.
ENVTL.
PROTECTION AGENCY, http://www2.epa.gov/laws-regulations/summary-resource-conservation-
and-recovery-act (last visited Feb. 3, 2014).
79. See John R. Allison et al., Valuable Patents, 92 G
EO. L.J. 435, 465–66 (2004)
(reporting that a sample of 1,300 U.S. patents included 432 individual inventors and small entity
owners); Raymond Shih Ray Ku et al., Does Copyright Law Promote Creativity? An Empirical
Analysis of Copyright’s Bounty, 62 V
AND. L. REV. 1669, 1711–12 (2009) (discussing a potential
increase in size of the “creative class,” made up of individual artists and authors).
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entities and small firms, where individuals generally lack significant
expertise in intellectual property law.
80
Professor Robert Merges, for
example, has conducted an empirical survey of the professional creative
landscape in copyright- and patent-intensive industries, and concludes
that “[e]ighty-five percent of establishments in the arts, entertainment,
and recreation industry employ fewer than [twenty] workers.”
81
Merges
concludes, “[R]esearch on innovation has in recent years consistently
emphasized the increasing importance of smaller innovative companies”
relative to larger companies.
82
The prevalence of small entities in the
creative industries and their relative contribution to innovation are
critical, as research indicates that smaller firms are responsible for more
significant innovation than larger firms.
83
Second, general public perception also characterizes the likely state
of mind for most intellectual property users, many of whom are
expected to operate with limited knowledge of intellectual property law.
This is likely the state of understanding, with regard to intellectual
property rights compliance and enforcement, for the dominant portion—
at least in numerosity—of the user population.
84
Third, public perception of intellectual property represents the
expected mindset for most jurors and many judges tasked with deciding
intellectual property cases. In the recent Apple Inc. v. Samsung
Electronics Co. litigation, for example, it appears that the jury foreman,
widely recognized to have led the jury deliberation and decision-
making, did not accurately understand patent law as explained through
instruction by the court.
85
In such circumstances, presumably common
in jury deliberation, the public psychology of intellectual property likely
represents the dominant understanding in individual and group decision-
making. Many district court judges also will not be specifically
knowledgeable about intellectual property. Most district court judges
hear copyright and patent cases so infrequently that they are not experts
in intellectual property law.
86
Public perception of intellectual property
80. See Janis & Holbrook, supra note 2, at 84 (rejecting “the notion” that those who
operate under the patent system are all sophisticated concerning the content of patent law).
81. MERGES, supra note 45, at 204.
82. Id. at 204 fig.7.1, 210.
83. Id. at 210–12; Josh Lerner, The New New Financial Thing: The Origins of Financial
Innovations, 79 J.
FIN. ECON. 223, 224 (2006).
84. See Tyler, supra note 2, at 224 (suggesting, based on experimental research, that
gaining voluntary cooperation with the law will increase the effectiveness of intellectual
property law).
85. Mike Masnick, Samsung/Apple Jury Foreman’s Explanation for Verdict Shows He
Doesn’t Understand Prior Art,
TECHDIRT (Aug. 30, 2012),
http://www.techdirt.com/articles/20120830/02063020214/samsungapple-jury-foremans-explana
tion-verdict-shows-he-doesnt-understand-prior-art.shtml.
86. See T
HE STATISTICS DIV., ADMIN. OFFICE OF THE U.S. COURTS, 2011 ANNUAL REPORT OF
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rights is therefore likely the best indicator of the perspectives of most
jurors and many judges.
Fourth, the public psychology of intellectual property is also
expected to influence and guide many lawmakers in determining their
support for or opposition to particular intellectual property law
proposals, such as SOPA and PIPA. This is true both on the individual
preference level—i.e., it is the perception that many legislators are
expected to possess as individuals—and also on the representative level
because legislators will be affected by the opinions and public discourse
surrounding intellectual property debates produced by the voting public,
media, and general citizenry. These final effects bring the discussion
full circle, as they indicate that the public psychology of intellectual
property will guide even sophisticated intellectual property firms, which
will recognize that they operate in an environment where legal decision-
making, public policy, and their consumers are all influenced by the
public psychology of intellectual property rights.
The public psychology of intellectual property is thus critical to the
function of the intellectual property system.
87
People with different
perspectives on intellectual property law and rights are expected to
behave differently. Despite this crucial import, the public perception of
intellectual property rights has barely been explored. Understanding this
psychology can clarify the likelihood that intellectual property law will
achieve its objectives, the propensity for people to obey intellectual
property law, how judges and juries will decide intellectual property
cases, and the probability that particular intellectual property laws will
be enacted. In an effort to shed light on the psychological and
behavioral issues that underscore the intellectual property system, the
study reported here is designed to examine popular conceptions of
intellectual property rights and the basis for these rights, how these
popular conceptions map onto actual law, and variation in perceptions
between copyright and patent protection. The answers to these questions
will provide significant insight concerning how people actually respond
to the psychological and behavioral assumptions of the intellectual
property system, and potentially how the law may be modified to better
THE DIRECTOR: JUDICIAL BUSINESS OF THE UNITED STATES COURTS 128–30 (2012), http://www.
uscourts.gov/uscourts/Statistics/JudicialBusiness/2011/JudicialBusiness2011.pdf (reporting that
approximately 2% of district court judge caseloads involve copyright and patent cases). Congress
recently enacted a pilot program that is investigating the potential benefits of funneling patent
cases to judges who opt to hear more such cases. Press Release, Third Branch News: U.S. Courts,
District Courts Selected for Patent Program (June 7, 2011), available at
http://www.uscourts.gov/News/NewsView/11-06-07/District_Courts_Selected_for_Patent_Pilot
_Program.aspx.
87. See, e.g., MacCoun et al., supra note 5, at 347 (explaining that if people do not
accurately understand marijuana prohibition laws, then such laws cannot have their designed
effect with respect to deterrence).
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serve society’s ends.
88
II. EXPERIMENTAL STUDIES ON THE PSYCHOLOGY OF INTELLECTUAL
PROPERTY
The current study utilizes a series of innovation scenarios to examine
how popular conceptions of intellectual property rights comport with
actual intellectual property law and how those popular conceptions vary
across different types of creative endeavors. The study also investigates
public perception of the basis for intellectual property rights.
A. Methodology
Four different innovation scenarios were developed involving
hypothetical factual situations designed to test public perceptions of
intellectual property rights, both in areas where patent and copyright
law are harmonious and where they diverge. Each scenario concerns a
creator, the creator’s creative product, and the creator’s potential
intellectual property rights in the creative product. Each scenario has
two conditions. One condition involves artistic creativity, such as the
production of a new book, song, or sculpture. The second condition is
worded nearly identically, except that instead of involving an artistic
creation, the creator works on and achieves an inventive creation, such
as a medical device, mechanical invention, or computer program.
Participants received one condition for each of the four innovation
scenarios, randomly selected and ordered, though controlled so that
each participant received two artistic creation and two inventive
creation scenarios.
Participants in each study condition were queried concerning
whether they thought the creator should be entitled to intellectual
property rights in the creative product, and answered by selecting a
response on a seven-point scale ranging from “Definitely Not” to
“Definitely Yes.” Follow-up questions regarding the participants’ basis
for awarding or not awarding such rights were then asked. These
questions were answered on a multiple choice selection that included
brief written descriptions of natural rights, incentive, and expressive
bases for intellectual property law, as well as an option to provide
another explanation. Participants were also queried on a variety of
demographic information, and asked whether they had any personal
experience with intellectual property law, such as working as an
attorney, paralegal, creator, or otherwise.
A national population of 1,719 United States adults took part in the
88. See, e.g., Cardi et al., supra note 1, at 567 (presenting experimental evidence
concerning how subjects responded to the threat of potential tort liability in an effort to better
understand the influence of the tort law system on human behavior).
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study, produced via SurveyMonkey, an online survey instrument
company.
89
The study participants were not paid for taking part in the
survey, but they were entered into a weekly cash drawing and a
donation was made to charity on their behalf for their participation. The
study population was 47% female and ranged in age from eighteen to
ninety-one, with an average age of forty-two. The study population was
86% white, 5% African-American, 3% Asian, and 7% classified
themselves as having another racial makeup. Examples of the
innovation scenarios, in both copyright and patent conditions, are
provided in Appendix A.
B. Results
1. Scenario One: Infringement
The most fundamental right provided by intellectual property
protection is the right to exclude others from copying copyrighted or
patented work. A copyright generally protects its owner against another
person copying, distributing, performing, or displaying the copyrighted
work.
90
A patent prohibits anyone else from making, using, selling,
offering for sale, or importing the patented subject matter.
91
Scenario One tested participants’ opinions concerning infringement
liability for copying the creative works of others. This scenario involved
a software programmer in the invention/patent condition and a musician
in the artistic/copyright condition. In each case, the creator had recently
completed a new, nonobvious work. The creator placed the new
computer program or song on a website, permitting others to use it, but
included a notice specifically stating that no one should download or
copy the work without the creator’s permission. A second party visited
the website, downloaded the work without permission, and used it
regularly. Participants were queried concerning whether they agreed or
disagreed that the creator should be entitled to monetary damages for
intellectual property rights infringement.
The scenarios in Scenario One were drafted such that the computer
program and the new song would be entitled to patent and copyright
protection, respectively, under the law. Both scenario conditions
constitute infringement by the second party under patent and copyright
law, and would entitle the creator to monetary damages.
92
Seventy percent of respondents in the patent condition answered that
89. See http://www.surveymonkey.com/ for information about SurveyMonkey.
90. 17 U.S.C. § 106 (2006).
91. 35 U.S.C. § 271 (2006).
92. The copying party in the copyright scenario could raise a fair use defense to
infringement, but the facts of the scenario make this argument weak. See 17 U.S.C. § 107
(defining statutory provisions of fair use).
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the computer program developer should be entitled to monetary
damages, a response consistent with intellectual property law, versus
19% who believed that the creator should not be so entitled. Fifty-nine
percent of respondents in the copyright condition concluded that the
songwriter was entitled to monetary damages, while 31% believed that
the creator was not. Though this provides a majority response consistent
with copyright law, it is a relatively weak majority, and a far smaller
differential (28%) than the patent scenario (51%). Results are displayed
in Figure 1.
93
Two-tailed binomial tests reveal that participants were
significantly more likely to conclude that the creator was entitled to
damages than to conclude that the creator was not entitled to damages in
both the patent (p < .001) and copyright (p < .001) scenarios.
Figure 1. Infringement Scenario Responses
Patent condition participant responses: No—155; Undecided—96; Yes—587. Copyright
condition participant responses: No—273; Undecided—84; Yes—516. Figure 1 displays
these responses as percentages. The position of actual IP law is labeled with bullet
points.
Comparing the mean responses on the seven-point scale on
entitlement to monetary damages using an independent samples t-test
confirms that participants were significantly more likely to conclude
that infringing the patented invention (M = 5.18, SD = 1.84), versus the
artistic creation (M = 4.65, SD = 2.05), entitled the creator to damages
(t(1701) = 5.62, p < .001).
94
Respondents were more likely to award
93. For ease of comparison, Figures 1–4 group the seven-point intellectual property rights
responses into three categories: those who opposed intellectual property rights in a given
scenario (individuals who responded “Definitely Not,” “Probably Not,” or “Perhaps Not” to the
intellectual property rights query), those who were at the mid-point (“Maybe”), and those who
were opposed to intellectual property rights in the scenario (“Definitely Yes,” “Probably Yes,”
or “Perhaps Yes”).
94. Levene’s Test indicated unequal variances (F = 36.271, p = .000), so degrees of
freedom were adjusted from 1709 to 1701. For background information on Levene’s Test, see
Levene Test for Equality of Variances, NIST/SEMATECH
E-HANDBOOK OF STATISTICAL
METHODS, http://www.itl.nist.gov/div898/handbook/eda/section3/eda35a.htm (last visited Feb.
Should the creator receive damages for infringement?
No
Undecided Yes
Patent
Condition
Copyright
Condition
Actual
IP Law
Actual
IP Law
59 %
70 %12 %19
%
31 %
10 %
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damages for infringement of an inventive creation than for infringement
of an equivalent artistic creation.
2. Scenario Two: Creativity Threshold
One area where copyright law and patent law diverge sharply is the
requisite level of creativity for a work to obtain intellectual property
protection. As discussed above, copyright protection is available for any
work of authorship fixed in a tangible medium, so long as the work is
original with the author.
95
The threshold of originality for copyright
protection is famously low, and does not require evaluation of how
creative a work is, so long as it meets the de minimis originality
standard.
96
Patent law, on the other hand, has an elevated creativity
threshold. To merit patent protection, an invention must be nonobvious
in comparison to prior technology from the perspective of a person
having ordinary skill in the field of endeavor.
97
The rationale behind the
nonobvious requirement in patent law is that obvious advances will be
achieved without the necessity of a patent incentive, and that trivial
advances do not benefit society enough to warrant imposing the costs of
a patent monopoly on the public.
98
The second scenario investigated participants’ perceptions of the
appropriate level of creative achievement necessary to entitle a creator
to copyright or patent protection. The invention/patent condition
involved a scientist who achieved a mechanical invention. As described
in the scenario, though the invention is new, both its development and
the actual inventive accomplishment are somewhat predictable, and
would be considered obvious to a person with ordinary skill and
experience in the inventor’s field. The artistic/copyright condition is
worded essentially identically, except that the new work is a fictional
book, rather than a mechanical invention.
Scenario Two is drafted such that the creative achievements in each
condition are new, but not highly creative. These circumstances would
entitle a creator to copyright protection under copyright law’s
originality standard, but would not entitle a creator to patent protection
pursuant to patent law’s requirement that the invention be nonobvious.
Contrary to intellectual property law, 60% of respondents in the
patent condition concluded that the inventor was entitled to intellectual
property protection. Consistent with the law, 75% of respondents in the
copyright condition similarly concluded that the author was entitled to
intellectual property protection. Two-tailed binomial tests demonstrate
3, 2014).
95. 17 U.S.C. § 102.
96. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
97. 35 U.S.C. § 103 (2006); KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 419–20 (2007).
98. See Graham v. John Deere Co., 383 U.S. 1, 8–10 (1966).
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282 FLORIDA LAW REVIEW [Vol. 66
that participants were significantly more likely to grant intellectual
property protection to a novel, obvious creation than to deny protection
in both the patent (p < .001) and copyright (p < .001) scenarios.
Figure 2. Creativity Threshold Scenario Responses
Patent condition participant responses: No—218; Undecided—115; Yes—500. Copyright
condition participant responses: No—136; Undecided—85; Yes—648. Figure 2 displays
these responses as percentages. The position of actual IP law is labeled with bullet points.
An independent samples t-test of the responses found that
respondents were significantly more likely to award intellectual
property protection for an artistic creation (M = 5.44, SD = 1.77) than
for an equally creative inventive work (M = 4.72, SD = 1.85,
t(1687) = 8.19, p < .001).
99
Participants tended to prefer a higher
creativity threshold for acquiring intellectual property rights to an
inventive work than for an artistic creation, though not as high a
standard in the former case as is dictated by actual patent law.
3. Scenario Three: Independent Creators
Copyright law and patent law also differ concerning the potential
intellectual property rights of later, independent creators. Copyright
doctrine provides that a subsequent author who independently produces
a work that is similar to an earlier copyrighted work is entitled to a
separate copyright in the later work and is not liable for copyright
infringement for publishing or distributing the independent work.
100
Under copyright law, it is the work itself that is copyrighted, and
protection only applies to copying of that particular work.
101
A patent
provides very different protection. A patent protects an area of subject
matter from infringement, not just a particular invention.
102
Thus, a
99. Levene’s Test indicated unequal variances (F = 7.120, p = .008), so degrees of
freedom were adjusted from 1700 to 1687.
100. 17 U.S.C. § 102 (2010); Feist Publ’ns, 499 U.S. at 345.
101. 17 U.S.C. § 102.
102. 35 U.S.C. § 101 (2010); Tex. Instruments, Inc. v. U.S. Int’l Trade Comm’n, 805 F.2d
Actual
IP Law
Patent
Condition
Copyright
Condition
Does a new, obvious creation deserve intellectual property protection?
No
Undecided Yes
Actual
IP Law
75 %10 %16 %
26% 14% 60 %
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patent covers not only an innovator’s particular embodiment of an
invention, but also an area of technology surrounding the invention, as
defined by the patent’s descriptive claims.
103
A subsequent inventor
cannot practice any invention that falls within the scope of the patented
subject matter, regardless of whether the later invention was
independently achieved.
104
A copyright owner must prove copying in
order to establish infringement liability,
105
while a patent owner does
not.
106
The third scenario concerned independent creators. In the
artistic/copyright condition, a sculptor, after considerable effort,
produced a new sculpture. Shortly thereafter, a second sculptor, who
lived across the country and was entirely unaware of and not influenced
by the first sculptor or the first sculptor’s work, produced a substantially
similar sculpture. The invention/patent condition is identical, except that
it concerns a doctor’s invention of a new medical device.
In each condition, the study participants were informed that the first
creator was entitled to intellectual property rights in the initial sculpture
or medical device. The participants were queried concerning whether
the second creator should also be entitled to his or her own intellectual
property rights. As explained above, under intellectual property law, the
second sculptor would be entitled to an independent copyright in his or
her sculpture under copyright law, while patent law would bar the
second inventor from patenting the later medical invention in the
corresponding patent scenario.
Consistent with copyright law, 60% of participants in the copyright
condition concluded that the later, independent sculptor should be
entitled to separate intellectual property rights in the second sculpture.
Contrary to patent law, 55% of participants in the patent condition
concluded that the later, independent inventor should be entitled to
separate intellectual property rights in the second medical device. Two-
tailed binomial tests indicate that participants were significantly more
likely to award the later independent creator intellectual property rights
than to deny rights in both the patent (p < .001) and copyright (p < .001)
scenarios.
1558, 1562–63 (Fed. Cir. 1986).
103. 35 U.S.C. § 112; Tex. Instruments, 805 F.2d at 1562–63.
104. 35 U.S.C. § 102; Scanner Techs. Corp. v. ICOS Vision Sys. Corp., 528 F.3d 1365,
1379 (Fed. Cir. 2008).
105. Feist Publ’ns, 499 U.S. at 361.
106. See Scanner Techs., 528 F.3d at 1379 (“[Patent infringement] claims can be met by
slavish copying, or equally met by independent development of the accused products.”).
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Figure 3. Independent Creator Scenario Responses
Patent condition participant responses: No—282; Undecided—114; Yes—476. Copyright
condition participant responses: No—242; Undecided—89; Yes—501. Figure 3 displays
these responses as percentages. The position of actual IP law is labeled with bullet
points.
The mean values of the copyright (M = 4.69, SD = 2.17) and patent
(M = 4.53, SD = 2.09) condition responses were not significantly
different under an independent samples t-test (t(1702) = 1.60, p > .1).
Thus, the study participants treated the invention and artistic scenarios
similarly, in both cases tending to prefer awarding intellectual property
protection to a later independent creator in addition to the rights held by
the first creator.
4. Scenario Four: Joint Creators
Copyright and patent laws further differ in the requirements for, and
rights of, joint creators. Joint creator law pertains to whether an
individual, such as a collaborator, assistant, or supervisor, has
contributed enough to an endeavor to be entitled to the status of joint
author or joint inventor, and is consequently entitled to concomitant
copyright or patent rights in the underlying intellectual property.
Copyright law provides that individuals are only joint authors if each
contributor intends to produce a joint work, each contributor intends to
be a joint author, and each contributor makes an independently
copyrightable contribution to the work.
107
Patent law is more lenient in
this regard. Individuals are joint inventors if they make a not
insignificant contribution to the conception of an invention, regardless
of intent, even if they did not make an independently patentable
contribution, and even if they only contributed to a subset of the patent
claims.
108
Joint owners of intellectual property are, under both copyright
and patent law, typically treated as tenants in common in their
intellectual property rights, meaning that the joint owners possess equal
107. Aalmuhammed v. Lee, 202 F.3d 1227, 1233–35 (9th Cir. 2000); Thomson v. Larson,
147 F.3d 195, 200 (2d Cir. 1998).
108. Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1460 (Fed. Cir. 1998).
Actual
IP Law
Patent
Condition
Copyright
Condition
Actual
IP Law
Should independent creator be granted IP rights?
No
Undecided Yes
60 %
55%32%
29%
13%
11 %
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rights to produce, distribute, and license the intellectual property.
109
The stark difference between joint author versus joint inventor
doctrine is evident in the case law. In a seminal copyright case, the court
held that a dramaturg who had contributed independently copyrightable
material, which constituted one-sixth of the Pulitzer Prize and Tony
Award-winning musical Rent, was not entitled to be a joint author
because the lead author had not intended such.
110
In the leading joint
inventor case, on the other hand, the court held that an electronics
technician who contributed to two claims out of dozens in a medical
device invention, neither of which were even involved in the
infringement at issue, was entitled to equal ownership of the entire
patent, regardless of the lead inventor’s intent.
111
Scenario Four concerned whether a party that provides assistance to
a primary creator should be entitled to share intellectual property rights
in the final work. The artistic/copyright condition concerned a
songwriter who recently completed an initial version of a new song. The
author of the song contacted a second songwriter, whom the author had
heard about but had never worked with before, for feedback on the
song. The initial author was particularly concerned with one section of
the song that the author felt was not as strong as it could be. The second
songwriter provided feedback to the original author, including on the
particular portion of the song identified. The original author
incorporated some of the second songwriter’s suggestions into the final
song. In total, the second songwriter’s feedback was responsible for
about 20% of the final song.
Study participants were informed that the original songwriter was
entitled to intellectual property rights in the final song, and were queried
concerning whether the secondary contributor should be entitled to
share in those intellectual property rights. The participants were
informed of some of the rights that joint ownership would provide under
intellectual property law, but were not informed about the legal standard
for becoming a joint owner. The invention/patent condition was
identical, except that the creative subject matter was a new software
program, not a new song.
Participants in both the patent and copyright conditions were
relatively evenly split concerning whether intellectual property rights
should be awarded to the secondary contributor, as shown in Figure 4.
Two-tailed binomial tests revealed that participants were significantly
less likely to grant a share of intellectual property rights to a secondary
contributor in the copyright context (p < .05), but not in the patent
context (p > .05).
109. See 17 U.S.C. § 201(a) (2006); 35 U.S.C. §§ 116, 262 (2006).
110. Thompson, 147 F.3d at 200–05.
111. Ethicon, 135 F.3d at 1460–64.
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286 FLORIDA LAW REVIEW [Vol. 66
Figure 4. Joint Creator Scenario Responses
Patent condition participant responses: No—365; Undecided—127; Yes—379.
Copyright condition participant responses: No—395; Undecided—112; Yes—330.
Figure 4 displays these responses as percentages. The position of actual IP law is labeled
with bullet points.
Participants in the patent condition were slightly more likely to
conclude that the second creator was entitled to joint creator rights
(M = 3.97, SD = 1.95) than participants in the copyright condition
(M = 3.74, SD = 1.95) according to an independent samples t-test
(t(1706) = 2.45, p = .015).
These results are modestly consistent with joint creator law, to the
extent joint inventorship presents a lower hurdle to ownership than joint
authorship. The magnitude of the difference in the study results,
however, appears significantly less than would be expected considering
the actual differences in legal doctrine, and the results indicate that
public perceptions are likely stricter for inventors than actual patent law
and looser for authors than actual copyright doctrine.
5. Basis for Intellectual Property Rights
All four scenarios also examined public perception concerning the
basis for intellectual property rights. After participants answered the
initial intellectual property rights questions for their two patent and two
copyright scenarios, participants were queried concerning the basis for
awarding or denying intellectual property rights in the final scenario
considered. The intellectual property basis question was asked at the
end of the scenarios so as not to bias answers to the individual scenario
conditions. Each participant thus answered the question on the basis for
intellectual property rights in only the last of the four scenario
conditions received. The scenarios and conditions were ordered
randomly so that approximately one-eighth of the full study population
answered the intellectual property rights basis question for each of the
four scenarios in the two different conditions.
Patent
Condition
Actual
IP Law
Copyright
Condition
Actual
IP Law
Should secondary contributor be granted share of IP rights?
No Undecided Yes
44%
39%
47%
42%
15%
13%
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The response options for the intellectual property basis question
were modeled on the three most commonly propounded bases for
intellectual property law, as discussed above: a natural rights basis, an
incentive basis, and an expressive basis. The basis question queried
respondents concerning whether the basis for their decision on
intellectual property rights was (1) the best way to give people who
accomplish something creative the intellectual property rights to which
they are entitled; (2) the best way for intellectual property rights to
encourage people to pursue creative accomplishments; (3) the best way
for intellectual property rights to support the opportunity for people to
express themselves creatively; or (4) some other explanation (with
space provided for an open-ended answer by the respondent). Overall,
respondents were substantially more likely to identify a natural rights
entitlement basis for intellectual property rights (60%) than either an
incentive (23%) or expressive (17%) basis.
112
These results run strongly
contrary to the dominant theory of intellectual property law recognized
in most intellectual property policy, economic, and legal analysis.
113
Figure 5 presents the percentage of participants selecting each of the
identified bases for intellectual property rights, differentiated by
scenario and condition. In every condition and every scenario, more
participants perceived a natural rights foundation to intellectual property
rights than any alternative basis, generally by a wide margin. Two-tailed
binomial tests reveal that participants were significantly more likely to
select a natural rights basis for intellectual property rights over either of
the other bases in each of the conditions and scenarios (p < .001 for
each case), except for the patent condition creativity threshold scenario,
in which there was no significant difference between the entitlement
and incentive responses (p > .05).
114
In the public mind, intellectual
property law exists to endow creators with natural rights to their
intellectual creations, not to provide an incentive for creative activity in
the first instance.
112. The reported results exclude participants who selected “Another explanation” from the
percentage statistics.
113. See supra Section I.B.
114. In the patent condition creativity threshold scenario, participants preferred both the
natural rights and incentive bases over the expressive basis (p < .001).
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288 FLORIDA LAW REVIEW [Vol. 66
Figure 5. Basis for Intellectual Property Rights
Looking beyond the dominance of the natural rights basis,
respondents were generally more likely to identify incentives as the
basis for intellectual property rights in the patent conditions than in the
copyright conditions. In Scenarios One and Two, twice as many
participants selected an incentive basis in the patent condition, a
difference that was narrower in Scenario Three and absent in Scenario
Four. Note that Scenarios One and Two involved questions about the
absolute existence of intellectual property rights (or not), while
Scenarios Three and Four concerned how to potentially divide
intellectual property rights among multiple creators.
Respondents were about twice as likely to identify an expressive
basis for intellectual property rights for artistic as opposed to inventive
creativity. While 17% to 26% of copyright condition respondents
selected the expressive value as the basis for intellectual property rights
across the four scenarios, only 11% to 13% of patent condition
respondents reached the same conclusion in the scenarios.
That participant responses vary across the eight conditions reported
here indicates that participants’ views on the basis for intellectual
property rights are contextual, depending on the particular factual
scenarios and types of rights involved. In particular, despite an overall
natural rights orientation, the results indicate that respondents appear to
view the basis of copyright law slightly differently than the basis for
patent law.
Entitled Basis Incentive Basis Expressive Basis
Stud
y
1: Infrin
g
ement Scenario Stud
y
2: Creativit
y
Threshold Scenario
Stud
y
3: Inde
p
endent Creator Scenario
Stud
y
4: Joint Creator Scenario
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6. Preferences for the Strength of Intellectual Property Rights
The infringement and creativity threshold scenarios, as noted above,
concern decisions about whether to award any intellectual property
rights in a creative work or none at all. The responses to these scenarios
therefore give an indication of whether an individual supports stronger
or weaker intellectual property protection. Responses to these two
scenarios were averaged for each respondent to produce an “IP
Strength” variable, providing a Likert scale to indicate whether any
particular participant tended to generally prefer stronger versus weaker
intellectual property rights. The mean IP Strength rating across all study
participants was 4.99 on the seven-point scale.
There was a significant relationship between participants’ responses
concerning the basis for intellectual property rights and their IP Strength
ratings. Respondents who perceived a natural rights basis for
intellectual property had significantly higher IP Strength scores
(M = 5.27, SD = 1.36) than those who supported an incentive basis
(M = 4.73, SD = 1.32, t(1041) = 5.80, p < .001) or those who supported
an expressive basis (M = 4.69, SD = 1.38, t(953) = 5.35, p < .001), each
pursuant to independent samples t-tests. Those who perceived an
expressive basis for intellectual property rights did not differ
significantly from those who perceived an incentive basis
(t(500) = 0.30, p > .05).
Linear regression analysis was used to examine the relationship
between IP Strength and a number of independent variables. The
independent variables included gender (female=0; male=1), race
(white=0; minority/non-white=1), age, political ideology (based on
responses to a seven-point scale query running from Extremely
Liberal=1 to Extremely Conservative=7), income (respondent’s annual
income, grouped in five ranges), education (number of years of school),
and past experience with intellectual property law. Past experience with
intellectual property law considered in the survey included work as an
intellectual property attorney or paralegal, being the creator of patented
or copyrighted work,
115
or any other self-identified experience in the
field.
The regression model is statistically significant overall
(F
7,1256
= 4.011, R
2
= .022, p < .001). Being older, having lower income,
115. Doctrinally, everyone is the creator of copyrighted work (from the time one first
draws as a child), as copyright protection attaches automatically as soon as original work of
authorship is fixed in a tangible medium. 17 U.S.C. § 102 (2006). The intellectual property
experience question was administered based on the reasoning that primarily individuals who
depended to some significant extent on copyright protection for their work or as a hobby would
self-identify as having created copyrighted work. Consistent with this reasoning, only 80 (4.7%)
of the 1,719 person subject pool indicated that they had created copyrighted work.
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being more educated, and having less intellectual property experience
all correlate with a desire for stronger intellectual property protection
across the scenarios. Results are shown in Table 1.
Table 1. IP Strength and Predictor Variables Regression
β
coefficient
Gender -.017
Race .025
Age .100**
Political Ideolo
gy
.034
Income -.071*
Education .065*
IP Experience -.059*
* Result is significant at the .05 level. ** Result is significant at the .01 level.
Because the predictor variables could affect preferences related to
artistic versus technological creation in different manners, separate
regressions were run after segregating the cases into the patent and
copyright conditions for the two scenarios used to produce the IP
Strength scale. Both the patent condition (F
6,624
= 4.564, R
2
= .042,
p < .001) and the copyright condition (F
6,626
= 2.238, R
2
= .021, p < .05)
produced statistically significant models. Results are shown in Table
2.
116
Table 2. IP Strength in Patent and Copyright Conditions
Patent Condition
β
coefficient
Copyright Condition
β
coefficient
Gender -.078 .039
Race .049 .011
A
g
e .132** .059
Political Ideolo
gy
.113** -.041
Income -.079* -.067
Education .000 .101*
* Result is significant at the .05 level. ** Result is significant at the .01 level.
Different predictor variables explained the variation in the patent
versus copyright conditions. Though being older and having lower
income both correlated with a desire for stronger patent protection,
neither correlated with copyright protection responses. Conversely,
116. The intellectual property experience variable was removed from these regressions to
consider it in further detail below.
30
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2014] THE PUBLIC PERCEPTION OF INTELLECTUAL PROPERTY 291
being more educated correlated with a desire for stronger copyright
protection, but not with patent preferences. Being more conservative
also correlates with a preference for stronger patent protection, a
relationship that does not exist for the overall or the copyright
populations.
Finally, because beliefs concerning the basis for intellectual property
rights could affect preferences for the strength of intellectual property
rights in different ways, regressions were run dividing the patent and
copyright condition groups by their perceptions of the basis for
intellectual property rights. Two models were significant overall: the
model for patent condition respondents who believe in natural rights to
intellectual property protection (F
6,267
= 4.178, R
2
= .086, p < .001) and
copyright condition respondents who believe in an expressive basis for
intellectual property protection (F
6,70
= 2.276, R
2
= .163, p < .05).
Results are shown in Table 3.
Table 3. IP Strength and Basis for IP Protection
Patent Condition
Natural Rights IP Basis
β coefficient
Copyright Condition
Expressive IP Basis
β coefficient
Gender -.123* .156
Race .036 .279*
A
g
e .215** .183
Political Ideolog
y
.128* .187
Income -.100 -.192
Education .015 .000
* Result is significant at the .05 level. ** Result is significant at the .01 level.
Two relationships not identified in the earlier regressions emerge
here. First, women tended to prefer stronger patent rights than men
among those respondents who believe in a natural rights basis for
intellectual property rights. Second, minorities tended to prefer stronger
copyright protection than whites among those respondents who believe
in an expressive basis for intellectual property rights.
117
117. This analysis compares the 86% of survey respondents who self-identified as white
with the combined 14% of survey respondents who self-identified as African-American, Asian,
or having another racial makeup. It does not take into account responses to a separate question
concerning whether the respondent self-identified as Hispanic. Further studies would be
necessary to explore heterogeneity in intellectual property preferences within the minority/non-
white populations.
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292 FLORIDA LAW REVIEW [Vol. 66
III. DISCUSSION
The innovation scenario experiments reveal that public perceptions
concerning both the substance of and basis for intellectual property
rights differ substantially from actual intellectual property law.
Consequently, the behavioral policy on which intellectual property law
is based may not function in the manner intended.
118
This disconnect
between public understanding and legal rules may weaken public
perception of the legitimacy of the intellectual property system and
undermine its ability to achieve the desired goals. This Section
discusses implications of the study results for intellectual property law
and for ongoing intellectual property policy debates.
A. Public Perception of Intellectual Property Rights and the Law
Public perception concerning what copyright protection should be
was partially consistent with actual copyright law. Across the
infringement, creativity threshold, and independent creator scenarios,
the majority of study participant responses concerning intellectual
property rights were similar to what copyright law would dictate in each
scenario. That said, in the last two of these three scenarios, the majority
was relatively modest; in neither case did more than 60% of respondents
agree with copyright law. The fourth scenario, concerning joint creator
rights, presented more ambiguous results. Participants appeared more
willing to grant a secondary contributor a share of intellectual property
rights than actual copyright doctrine requires.
119
Taken as a whole, a
modest majority of the study population tended to agree with copyright
law across the scenarios.
The patent law scenario results present an even more disparate
contrast between public perception and the law. Participant responses to
the innovation scenarios diverged significantly from patent doctrine,
118. In an attempt to better understand human behavioral response to the patent system,
Professors Andrew Torrance and Bill Tomlinson developed an online computer game to
simulate invention, patenting, and licensing. Andrew W. Torrance & Bill Tomlinson, Patents
and the Regress of Useful Arts, 10 C
OLUM. SCI. & TECH. L. REV. 130, 134 (2009). Though the
experiment involved a highly abstract model of the invention and patenting process,
participants’ behavior varied between the patent, commons, and mixed patent/open source
conditions. See id. at 166-67.
119. Overall, the results of the copyright scenarios appear perhaps contrary to conclusions
reached in prior qualitative studies that lay individuals are “largely ignorant” of copyright law’s
rights and responsibilities. E.g., John Palfrey et al., Youth, Creativity, and Copyright in the
Digital Age, 1 I
NT’L J. LEARNING & MEDIA 79, 79–80 (2009) (concluding, based on a
qualitative study, that youths are generally ignorant of copyright law). Although the instant
study did not test participants’ knowledge of intellectual property law, the consistency between
participant responses and the law could be interpreted to indicate that respondents would also
answer with some accuracy if queried about actual law. These issues merit further investigation.
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and differed in an inconsistent manner. Only 26% of study respondents
in the creativity threshold scenario agreed with the patent law
requirement that an invention must be nonobvious in order to deserve a
patent; the majority instead would grant patent protection to an obvious
mechanical invention. Similarly, though patent law prohibits a later
independent inventor from obtaining patent protection on the same
subject matter as an earlier inventor, a majority of respondents
concluded that such an independent creator should receive intellectual
property protection. The joint creator scenario results were also
inconsistent with patent law; only a minority of respondents believed
that a joint inventor deserved to share intellectual property rights in
circumstances in which patent law would tend to award equal patent
rights. The one scenario where public perception appeared consistent
with actual law was the base infringement scenario, where a strong
majority of participants reached a conclusion of infringement, consistent
with patent doctrine.
The variation between public perception and intellectual property
law did not display a consistent directional bias. Across the four
scenarios, in both the copyright and patent conditions, participants
sometimes preferred stronger, sometimes weaker, and sometimes
similar intellectual property protection to actual law. This mix of
relations has important implications for the intellectual property system.
Inaccurate perceptions that are too strong or too weak do not have
symmetric effects on incentives for potential intellectual property
creators. If incentives to create are perceived as weaker than actual law,
such misperception is expected to lead to the underinvestment of
resources in creative activity, and consequently to less intellectual
creation and commercialization than is socially optimal. If incentives
are perceived as greater than actual law, however, such misperception is
expected to lead to the overinvestment of resources in creative activity.
Though the overinvestment of resources has a social cost because it is
not the most efficient deployment of such resources, the extra creative
innovation that is achieved is still socially beneficial: society gets the
benefit of this additional creation that results from the private
misallocation of resources due to misperceived excess incentives. This
analysis reveals that (1) there is likely a greater social cost to public
misperception that intellectual property protection is weaker than actual
law versus misperception that protection is stronger than the law, and
(2) public perception that intellectual property protection is stronger in
some areas than actual law, and weaker in others, does not simply
balance itself out to produce accurate behavioral incentives overall.
Returning to the study results, why would lay perceptions of
intellectual property rights be partially consistent with copyright law,
but relatively disharmonious with patent doctrine? There are several
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possible explanations for this divergence, depending in part on the
causal relationship between these findings. The nature of the study does
not permit identifying the existence or direction of any causal
interaction between public perception and the law. That is, the
correlation found in the study does not demonstrate whether public
perceptions influence the law, whether intellectual property law
influences public perceptions, or whether some third factor influences
both public perception and the law.
120
It is possible, for example, that a greater portion of the public is
aware of actual copyright law than patent law, and that knowledge of
what the law actually is influences perceptions of what the law should
be.
121
This could occur because most members of the public interact
with copyright law more regularly than with patent law, and may have
derived greater knowledge of copyright law from this experience. For
example, members of the public now have routine interaction with
copyright law through copyright warnings on DVDs and streaming
movies, shrink-wrap licenses, recording industry advertisements against
copying, and a plethora of uses on the Internet. This type of interaction
is much rarer with respect to patent protection.
122
It is also possible that a causal relationship operates in precisely the
opposite direction, with public preferences having a greater influence on
copyright law than on patent doctrine. Lay lawmakers may perceive that
they have a greater understanding of the underlying subject matter of
copyright law, due to their greater interaction with the law as noted
above and the nontechnical accessibility of copyrighted works. Such
lawmakers may consequently feel comfortable and interested in taking a
greater role in drafting and shaping copyright law. Broad public
perception could drive copyright law in other manners as well, as was
demonstrated in the SOPA and PIPA debates.
123
As a result, public
perceptions may have a greater influence on copyright law, via
lawmakers and the general public, than they do on patent law, the
subject matter of which is often viewed as more technical and obscure.
Patent law drafting may, therefore, be left to “experts” to a greater
120. See Friedman, supra note 11, at 294 (discussing the unclear causal relationship
between psychology and law where popular conceptions of ownership and property law
coincide).
121. See Alex Geisinger, A Belief Change Theory of Expressive Law, 88 I
OWA L. REV. 35,
37 (2002) (discussing how the law can affect social norms and individual preferences); see, e.g.,
Nora M. Findlay, In-School Administrators’ Knowledge of Education Law, 17 EDUC. & L.J. 177,
188 (2007) (suggesting that greater awareness of constitutional rights in a particular context
resulted in increased sensitivity towards such rights).
122. But see Howard Latin, “Good” Warnings, Bad Products, and Cognitive Limitations,
41 UCLA
L. REV. 1193, 1194–95 (1994) (examining the psychological limitations of the
effectiveness of product warnings in the tort context).
123. See supra Section I.C.
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extent. This has been the case historically for patent legislation.
Drafting the Patent Act in 1952, the most substantial changes to
statutory patent law within the last century, was famously assigned to a
small committee of experts, and adopted by Congress without much
debate.
124
Whatever the causal relationship between public perception and the
law, the results of this study indicate that the dominant behavioral
theory of intellectual property law may not be able to function as
conceived.
125
Given the public’s general lack of knowledge about
intellectual property law,
126
public perception of what the law should be
and of the basis for the law are expected to provide the dominant source
for human behavioral response to the intellectual property system.
127
Authors that misunderstand their potential to obtain copyright
protection, or to shield a copyrighted work from infringement, will
make inefficient decisions under the law concerning their efforts to
engage in creative endeavors and distribute creative work. Similarly, a
potential inventor who misperceives the likelihood of obtaining patent
protection, or the scope and extent of patent rights, will also engage in
an inefficient level of innovative and commercializing behavior relative
to the law.
128
Intellectual property users will fail to comply with
124. Giles S. Rich, Congressional Intent—Or, Who Wrote the Patent Act of 1952?, in
N
ONOBVIOUSNESS, supra note 35, 1:1, 1:10–1:13; P.J. Federico, Origins of Section 103, in
N
ONOBVIOUSNESS, supra note 35, 1:101, 1:101–1.109.
125. See Cardi, supra note 1, at 591–92 (reporting experimental study of tort law
indicating that the widely accepted behavioral model of potential tort liability as deterring
behavior appears unsupported); MacCoun et al., supra note 5, at 347 (recognizing that if public
perception diverges from the laws concerning marijuana possession, then the prohibition laws
cannot have their desired effect).
126. See, e.g., Michael A. Gollin, Answering the Call: Public Interest Intellectual Property
Advisors, 17 W
ASH. U. J.L. & POL’Y 187, 213 (2005) (noting general lack of awareness about
intellectual property law in developing countries); Palfrey et al., supra note 119, at 79 (finding
that youths are generally ignorant of copyright law); see also Chris Hoofnagle et al., How
Different are Young Adults from Older Adults When It Comes to Information Privacy
Attitudes and Policies, F
ED. TRADE COMMISSION 1, 4 (Apr. 14, 2010), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1589864 (reporting survey results, in FTC-
hosted public roundtable, that indicate a general lack of awareness of privacy law among
adults); Paul H. Robinson & John M. Darley, Does Criminal Law Deter? A Behavioral Science
Investigation, 24 OXFORD J. LEGAL STUD. 173, 174 (2004) (finding that people are largely
ignorant of criminal law).
127. See Janis & Holbrook, supra note 2, at 78 (discussing how even if parties are unaware
of the actual content of law, other mechanisms, such as background knowledge and norms, can
provide indirect information about the law); Paul H. Robinson & John M. Darley, The Utility of
Desert, 91 N
W. U. L. REV. 453, 457 (1997) (explaining that people may comply with the law
because they know the law, because the law may reflect widely shared beliefs, or because
people may be concerned with how their social group will perceive them).
128. This is not to say that the disconnect between public perception and the law fully
thwarts the law’s ability to provide incentives, only that the disconnect will prevent the law from
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intellectual property law, even in situations where they intend to do so,
leading to a reduction in intellectual property compliance and a likely
increase in enforcement costs. Jurors, as indicated in the Apple v.
Samsung case discussed earlier,
129
and potentially judges and
legislators, may make inappropriate decisions concerning the
development and implementation of intellectual property law.
Because this study concerns lay perceptions of intellectual property
law, the results should not be interpreted to indicate that all individuals
acting under the intellectual property system suffer the same
misperceptions. While the results likely reflect the perspectives of most
intellectual property users, jurors, and voters and citizens, they
presumably represent the views of only a smaller portion of legislators,
judges, and potential intellectual property creators. Some legislators and
judges are certainly more educated concerning the scope and basis of
intellectual property law. In particular, a recent pilot program that
directs patent cases to particular district court judges in certain districts
will make some district court judges greater experts in intellectual
property law.
130
Even sophisticated legislators and policymakers,
however, will need to take public perceptions, whether accurate or not,
into account in designing the intellectual property system in order to
achieve the desired ends.
Similarly, there are also many potential intellectual property
producers and investors, particularly at large, sophisticated firms, who
are more familiar with intellectual property law than the average
member of the public. For such producers, including individuals who
may lack personal knowledge of intellectual property law but are
employed in a firm designed to take advantage of the provisions of the
law, the intellectual property system may come closer to inducing the
desired behavioral response than the results of the present study
indicate—or, to be more precise, the present study does not disprove
such a possibility. For many other potential intellectual property
producers, however, the information on general public perception
revealed here likely represents an accurate description of their
providing the full incentives that it is designed to achieve. As discussed below, some actors
under the intellectual property system will operate in a more sophisticated intellectual property
environment, and some members of the population will perceive a more accurate set of
intellectual property laws and agree with the bases for the law, as shown by the results in
Figures 1–5.
129. See supra Section I.D.
130. See Patent Cases Pilot Program, Pub. L. No. 111-349, 124 Stat. 3674 (2011); Press
Release, Third Branch News: U.S. Courts, District Courts Selected for Patent Program (June 7,
2011), http://www.uscourts.gov/News/NewsView/11-06-07/District_Courts_Selected_for_
Patent_Pilot_Program.aspx (“Fourteen federal district courts have been selected to participate in
a 10-year pilot project designed to enhance expertise in patent cases among U.S. district
judges.”).
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understanding of the intellectual property system. As described above,
this latter group will include many individual producers and many
producers working at start-up firms and small companies.
131
These
actors represent a significant portion of intellectual property producers,
and they represent that portion that tends to provide the most significant
advances.
132
While it is currently impossible to know how much creative behavior
and attempted intellectual property compliance is misdirected as a result
of the disconnect between public perception and intellectual property
law, the results of this study indicate that there are likely problematic
effects that merit attention.
B. Public Perception of Artistic Versus Inventive Creativity
Respondents provided statistically significant different responses
across the patent versus copyright conditions in three of the four
scenarios. There was no apparent consistency, however, in the manner
of difference. Whereas respondents perceived that patent rights should
be stronger than copyright protection in the infringement scenario, they
concurrently thought that copyright protection should be stronger than
patent protection in the creativity threshold scenario.
In the two scenarios that involved potentially dividing intellectual
property rights across multiple creators or contributors, respondents
were also split. In the joint creator rights scenario, respondents were
more likely to support joint patent rights than joint copyright rights, in
each case in comparison with awarding rights to a single creator. In the
independent creator scenario, in contrast, there was no statistically
significant difference between the patent and copyright conditions.
Respondents also differed in their identified basis for intellectual
property rights in the copyright versus patent conditions. Participants
did favor a natural rights basis in every scenario, but tended to prefer an
incentive to an expressive basis in the patent conditions and the opposite
relationship in the copyright conditions. Members of the public appear
to view artistic creativity somewhat differently than inventive creativity,
and appear to have varying perceptions concerning what level of
intellectual property protection is appropriate based upon the underlying
creative work. Understanding the contours of such differentiation
requires further study.
133
131. See supra Section I.D.
132. M
ERGES, supra note 45, at 204 fig.7.1, 210–12; Allison et al., supra note 79, at 467;
Lerner, supra note 83, at 224.
133. One complicating factor with the current results is that differences in participants’
responses across conditions could be due either to differences in perception between artistic and
inventive creativity or to different attitudes towards the protection of particular types of works.
Stated another way, people could have different beliefs concerning the intellectual property
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Although it is true that generally there was a statistically significant
difference between the copyright and patent condition responses, the
more striking result here may be the similarity of responses across
conditions. Because of the large study population, even a small
variation in responses will produce statistically different results. In
comparison to actual law, however, there is actually relatively little
variation across the copyright and patent conditions. For example, the
largest variance across conditions was for the creativity threshold
scenario, where 75% of copyright respondents would grant protection to
obvious artistic creation, but only 60% of patent condition respondents
would grant protection to obvious technological creation—a difference
of 15%. But if participants had answered according to actual intellectual
property law, 100% of copyright respondents versus 0% of patent
respondents would grant protection.
134
Even greater harmonization is
revealed in the independent creators scenario, where the law again
would dictate a 100% variation between copyright and patent
doctrine,
135
but participant responses varied by only 5% (60% of
copyright participants versus 55% of patent participants would grant
protection). The other two scenarios produced variations of 11%
(infringement scenario) and 5% (joint creator scenario).
Despite substantial variation in the copyright and patent systems,
public perception of intellectual property rights across artistic versus
technological domains is markedly similar. As with the earlier
discussion concerning variance between public perception and law, the
causal relationships underlying this correlation are intriguing and
worthy of further study. It is possible that, for reasons discussed above,
the general public is more familiar with, or has had greater influence on,
copyright protection,
136
and assumes a similar level of protection for
patent law as well. Alternatively, it is also possible that the public’s
general preferences for intellectual property protection happen to align
more closely with copyright doctrine. The bottom line is that most
members of the public appear to view copyright and patent law much
more cohesively than the doctrine provides, and tend not to agree with
the stark variation across these fields defined by intellectual property
law.
protection of medical versus mechanical devices—both requiring inventive creativity—or
between the protection of novels versus songs—both requiring artistic creativity. Distinguishing
between attitudes across different types of creativity versus different creative domains would
require investigating the same issues while varying the domains.
134. See supra Subsection II.B.2.
135. See supra Subsection II.B.3.
136. See supra Section III.A.
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C. The Basis for Intellectual Property Rights
Given the widespread misunderstanding of intellectual property law
among the public, the public perception of the basis for intellectual
property rights is critically important as a determinant of human
behavior concerning creative endeavors. Even if people do not know
what intellectual property law is, they may still engage in behavior
consistent with the objectives of the intellectual property system. If the
public perception is in accord with the standard legal and policy basis
for intellectual property law, then people may make inferences about
intellectual property rights that are consistent with the law, and
consequently act in a behavioral manner consistent with the law’s
objectives.
137
Popular opinion concerning the basis for intellectual property rights,
however, is largely out of step with expert opinion in intellectual
property law and policy. Those who focus on intellectual property law
generally perceive the law as directed towards providing an incentive
for authors and inventors to produce, disseminate, and commercialize
creative achievements.
138
Conversely, the study results show that the
public at large primarily views intellectual property rights as deriving
from authors’ and inventors’ natural rights in their creative
achievement.
139
This result was consistent across all conditions and all
scenarios.
140
This general public perception comports with a collection
of evidence compiled by Jeanne Fromer indicating that the creators of
many artistic and scientific works believe in some form of natural rights
to their works.
141
Given that individuals with a natural rights perspective
were found to prefer stronger intellectual property protection than
individuals with other bases, this may lead to a public perception that
intellectual property rights should be stronger than they currently are.
Note that this discussion is not intended to claim, or disclaim, that an
incentive theory of intellectual property rights is the appropriate
normative basis for intellectual property protection. If intellectual
property law is going to be designed based on an incentive model of
behavior, however, it can only succeed if people respond to the law in
137. See, e.g., Friedman, supra note 11, at 290 (noting that people make inferences about
what can be owned and which rights are conferred by ownership when reasoning about physical
property).
138. See supra Section I.B.
139. See supra Subsection I.B.5 and Figure 5.
140. The lone exception to this statement concerned the creativity threshold patent
scenario, where there was not a statistically significant difference between the 47% of
respondents who selected a natural rights basis and the 40% of respondents who selected an
incentive basis. It is unclear why this scenario condition produced a different response, but it is
possible that the focus on needing to achieve an invention of a certain level of creativity
highlighted the potential push that intellectual property rights may provide.
141. Fromer, supra note 2, at 1764–78.
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the anticipated behavioral manner. The lack of public understanding
concerning intellectual property law and the mismatch between popular
and expert conceptions of the basis for intellectual property rights raise
strong questions concerning whether the model on which intellectual
property law is based can succeed.
142
Various studies indicate that law
usually functions best when it is in accord with popular beliefs, and that
there are limits on the extent to which legal rules can modify human
behavior.
143
The divide between intellectual property law and public
perception concerning both the content of, and basis for, the law runs
contrary to these teachings and will undermine both the legitimacy and
the effectiveness of intellectual property law.
144
D. Intellectual Property Demographics
Some of the most important findings from this study concerned
individuals’ divergence of opinion on preferences for the strength of
intellectual property rights. As reported above, being older, having
lower income, being more educated, and having less intellectual
property experience all correlate with a preference for stronger
intellectual property protection. Figure 6 displays these effects
graphically. This differentiation has important implications for several
ongoing intellectual property debates.
142. See Janis & Holbrook, supra note 2, at 74–75 (discussing how a lack of awareness of
patent law on the part of potential creators complicates the incentive theory of patent law).
143. E.g., ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE
DISPUTES 4–5, 10 (1991) (using anthropological and sociological studies to show how people
tend to govern themselves based on social norms, not law).
144. See, e.g., MacCoun et al., supra note 5, at 347 (explaining that marijuana prohibition
laws cannot be effective deterrents if the public is unaware of them); Tyler, supra note 5, at
380-81 (explaining how widespread public consent is crucial to legitimacy of the legal system
and that legitimacy is important for the legal system’s ability to function properly); John M.
Darley et al., The Ex Ante Function of Criminal Law, 35 L
AW & SOC’Y REV. 165, 183 (2001)
(explaining that the law’s credibility can be undermined when it does not accord with public
norms).
40
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The finding that younger people prefer weaker intellectual property
rights is consistent with past studies that have found similar results
when examining attitudes toward file sharing on the Internet.
145
There
does appear to be a generational divide concerning intellectual property
protection. Interesting, here, is that most past research has focused on
individual attitudes towards copyright protection, primarily in the
context of the Internet, while the present study finds an age effect for
the full population, across the patent and copyright conditions. This
study appears to be the first to indicate that the generational divide
concerning intellectual property rights cuts across intellectual property
domains.
Perhaps more surprising, the regressions reveal that having lower
income correlates with a desire for stronger intellectual property rights.
One possible explanation for this result is that the popular notion of the
small innovator hitting it big with a creative achievement may be
particularly attractive to those with lower income.
146
For those with
145. Bootie Cosgrove-Mather, Poll: Young Say File Sharing OK, CBS NEWS (Feb. 11,
2009), http://www.cbsnews.com/stories/2003/09/18/opinion/polls/main573990.shtml (reporting
survey results finding that 29% of adults under age thirty felt music sharing was always
acceptable, while only 9% of those age thirty and older agreed); Press Release, Digital Life
America, Americans Divided Over File Sharing (June 21, 2005), http://www.srgnet.com/wp-
content/uploads/dla-release-june-21_051.pdf (reporting survey results finding that those under
age thirty favored allowing file sharing services on average, while those over age thirty were
opposed).
146. This view would be somewhat analogous to data indicating that some support for
repeal of the estate tax by those who are less well-off (and unlikely to ever benefit from such
repeal) is based on a statistically unrealistic perception about the likelihood that one is going to
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higher income, intellectual property rights may be perceived as being
more likely to interfere with established business operations. Consistent
with this analysis, smaller companies tend to prefer stronger patent
rights than larger companies, in part for these reasons.
147
The study also finds an overall effect on intellectual property
strength preferences with respect to an individual’s education: being
more educated correlates with a preference for greater intellectual
property protection. Though the causal explanation for this relationship
is not necessarily clear, more educated individuals may tend to perceive
a greater likelihood of being able to personally profit off of their own
creativity or inventiveness. In addition, more educated individuals could
place a higher value on creativity and innovation.
That people with greater intellectual property experience prefer
weaker intellectual property protection may seem incongruous at first. It
is entirely consistent, however, with such individuals tending to view
intellectual property rights through more of an incentive lens, which
correlates with a preference for weaker rights.
148
That is, as individuals
gain experience with the intellectual property system, they likely
become more familiar with (or indoctrinated into) the incentive theory
on which intellectual property policy is based. Consistent with this
analysis, Pearson’s Correlation reveals a statistically significant
relationship between experience with intellectual property and an
individual’s beliefs about the basis for intellectual property rights
(r = .108, n = 1719, p < .001). In a similar vein, those who are
experienced with intellectual property also may be more likely to realize
that granting weaker intellectual property rights leads to greater access
to creative achievements for those who want to use or improve upon
earlier works. Intellectual property protection often presents a two-way
street. This more nuanced understanding, requiring a balance of the
strike it rich and be subject to the tax. But see MICHAEL J. GRAETZ & IAN SHAPIRO, DEATH BY
A
THOUSAND CUTS: THE FIGHT OVER TAXING INHERITED WEALTH 124–25 (2005)
(“[A]lthough people have unrealistic ideas about their prospects for upward mobility . . . , there
is substantial evidence that this distortion does not account for their hostility to the [estate] tax,
or at any rate not exclusively.”).
147. See M
ERGES, supra note 45, at 212; Stuart J.H. Graham et al., High Technology
Entrepreneurs and the Patent System: Results of the 2008 Berkeley Patent Survey, 24 B
ERK.
TECH. L.J. 1255, 1288 (2009).
148. Participants who responded that they had experience with intellectual property were
dominated by those who answered that they had copyrighted a work or who selected “other” in
response to the experience question. Unsurprisingly, there were few people who had worked as
an intellectual property attorney or paralegal in the participant pool. Of the 1,719 participants
who took part in the study, 221 (12.9%) identified some experience with intellectual property.
Eighty (4.7%) of the participants reported that they had copyrighted a work, 35 (2.0%) had
patented a work, 12 (.7%) had worked as an intellectual property attorney, 13 (0.8%) as an
intellectual property paralegal, and 122 (7.1%) identified other experience. As can be seen from
summing the results, respondents could identify multiple types of experience.
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rights of creators against the rights of users and improvers, could lead to
a desire for weaker rights when compared with individuals who lack
experience with intellectual property law, and who consequently are
less cognizant of the cost of this access tradeoff.
The results that those with greater experience prefer weaker
intellectual property rights may appear partially inconsistent with a
finding from prior research indicating that individuals with “serious
involvement” in art tend to prefer stronger intellectual property rights in
art in certain regards.
149
However, this disparity is likely explained by
differences in the study populations: Whereas the current study utilized
a national population, the prior research involved only subjects with
serious involvement in art.
For the patent conditions, the results indicate that being more
conservative correlates with a preference for stronger patent protection.
This result could arise from a greater propensity for conservatives to
desire to protect private property rights in general.
150
That said, we
would also need to understand why political ideology tends to cause
individuals to view intellectual property rights as similar to private
property rights, rather than viewing intellectual property rights as
government interference in the free market. The latter perspective
would produce the opposite effect to that found in the study, with
conservatives generally opposing, and liberals supporting, intellectual
property rights. Future studies that compare individual attitudes toward
real property versus intellectual property rights would be beneficial for
understanding these relationships.
151
149. See Barbara A. Spellman & Frederick Schauer, Artists’ Moral Rights and Psychology
of Ownership, 83 T
UL. L. REV. 661, 671–72 (2009).
150. See Richard H. Fallon, Jr., The “Conservative” Paths of the Rehnquist Court’s
Federalism Decisions, 69 U. CHI. L. REV. 429, 493 (2002); Lino A. Graglia, The Myth of a
Conservative Supreme Court: The October 2000 Term, 26 H
ARV. J.L. & PUB. POL’Y 281,
297-98 (2003); see also Matthew Sag et al., Ideology and Exceptionalism in Intellectual
Property: An Empirical Study, 97 CALIF. L. REV. 801, 811–15 (2009) (hypothesizing that
conservatives might support intellectual property rights based on their support of property rights
generally, but also suggesting that intellectual property rights may be in conflict with
conservative dislike of government intervention in the market).
151. There are limited studies concerning public attitudes toward property rights in general.
Some studies have found that homeowners are more opposed to eminent domain activities by
governmental entities than renters. E.g., M
ONMOUTH UNIV., THE POWER OF EMINENT
DOMAIN: ACCEPTABLE USES ARE FEW SAY GARDEN STATE RESIDENTS 4 (2005); N.J. ASS’N
OF
REALTORS, SMART GROWTH SURVEY (2008). While homeownership (versus renting) is
expected to correlate with wealth and income, questions on eminent domain are too closely
linked to homeownership to be able to extend these results to wealth or income effects more
generally. See also Oliver R. Goodenough & Gregory Decker, Why Do Good People Steal
Intellectual Property?, in LAW, MIND AND BRAIN 345, 345 (Michael Freeman & Oliver R.
Goodenough eds., 2009) (arguing that norms around property rights operate differently than
norms around intellectual property rights); Mohsen Manesh, The Immorality of Theft, the
Amorality of Infringement, 2006 S
TAN. TECH. L. REV. 5, ¶ 41 (positing that cognitive concepts
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Finally, among those who believe in a natural rights basis for
intellectual property rights, women tend to prefer stronger patent rights
than men. A growing body of scholarship has begun to explore the
relationship between gender and intellectual property law, some of
which argues that intellectual property law displays a male-gendered
bias in certain regards.
152
The results of this study could provide support
for some of these contentions, indicating differences among men and
women in their preferences for the strength of intellectual property
protection. In a similar vein, among those who believe in an expressive
basis for intellectual property rights, minorities tend to prefer stronger
copyright protection than do whites.
The relative lack of predictive power of the independent variables in
the copyright context, both in terms of the overall strength of the
regression model and the more limited number of significant
interactions, compared to the patent context, is intriguing. There are a
number of possible explanations for this, one of which may be that
patent protection feels more similar to real property to some, whereas
people are less sure about how to characterize or conceptualize
copyright protection. This explanation would be consistent with the
finding that more conservative participants tended to favor stronger
rights in the patent conditions, just as conservatives tend to favor
stronger rights in the real property context.
153
Further investigation
would be valuable to better understand the contours of these
interactions, and also to explore some of the causal relationships that are
hypothesized above.
The results from the regression analyses indicate that different
factors likely influence people’s evaluation of similar artistic versus
inventive creativity. This divergence in public perception about types of
creativity continues despite the fact that research on the psychology of
creativity indicates that the cognitive faculties that drive inventive and
artistic creativity are not so disparate.
154
To the extent popular
perceptions of creativity are misfounded, such misunderstanding may
have a deleterious effect on intellectual property law. As discussed
above, public perceptions may influence the law, both through popular
of intellectual property are distinct from those of tangible property).
152. Ann Bartow, Fair Use and the Fairer Sex: Gender, Feminism, and Copyright Law, 14
AM. U.J. GENDER SOC. POL’Y & L. 551, 552 (2006) (discussing gender bias in the development
of and profit from copyrightable work); Shlomit Yanisky-Ravid, Eligible Patent Matter—
Gender Analysis of Patent Law: International and Comparative Perspectives, 19 AM. U.J.
GENDER SOC. POL’Y & L. 851, 857 (2011) (“Accordingly, the law of invention is neither
objective nor neutral but contains a built-in gender bias.”).
153. See Fallon, supra note 150, at 493; Graglia, supra note 150, at 297-98.
154. See JOHN S. DACEY & KATHLEEN H. LENNON, UNDERSTANDING CREATIVITY: THE
INTERPLAY OF BIOLOGICAL, PSYCHOLOGICAL, AND SOCIAL FACTORS 203–06 (1998); THERESA
AMABILE, CREATIVITY IN CONTEXT 124–27 (1996).
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political pressure and through lawmakers’ personal perceptions.
155
Misunderstandings concerning the creative process, or concerning the
relationships between artistic and inventive creativity, could therefore
result in intellectual property law that is poorly suited to achieving its
desired ends.
The findings from the regression analyses also have significant
implications concerning ongoing intellectual property debates, such as
the continuing SOPA/PIPA conflict, disputes over the patent eligibility
of human genes that played out in the Myriad Genetics litigation,
156
and
recent Supreme Court intellectual property cases.
157
The analyses reveal
certain cultural divides over intellectual property rights that have not
previously been identified, but that could have significant influence on
the discourse and outcomes of these and future intellectual property
disputes.
IV. THE PSYCHOLOGY OF OWNERSHIP
The psychology of ownership is a branch of psychology that
investigates human cognition concerning the concept of ownership.
158
Most work in this area to date has concerned the ownership of physical
property. For example, psychologists have found that people make
judgments about who should own a physical object based on who has
done the work necessary to capture the object and bring it into
possession.
159
Psychological discernment of ownership of physical
property emerges at an extremely early age; it has been found in
children as young as three years old.
160
While we now know a
155. Deborah W. Denno, The Perils of Public Opinion, 28 HOFSTRA L. REV. 741, 761–62
(2000).
156. Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116–19
(2013) (holding that isolated DNA is not patent-eligible because it is naturally occurring, but
that synthetically created or modified DNA could be patent-eligible).
157. E.g., Monsanto Co. v. Bowman, 657 F.3d 1341 (Fed. Cir. 2011), aff’d, 133 S. Ct.
1761, 1764 (2013) (holding that the patent exhaustion doctrine does not apply to the offspring of
patented seeds); John Wiley & Sons, Inc. v. Kirtsaeng, 654 F.3d 210 (2d Cir. 2011), rev’d, 133
S. Ct. 1351, 1355–56 (2013) (applying the “first sale” doctrine of the Copyright Act of 1976 to
works manufactured overseas and imported and resold in the United States); Already, L.L.C. v.
Nike, Inc., 133 S. Ct. 721 (2013) (holding that the federal district court is divested of Article III
jurisdiction over a federal trademark case where the registrant promised not to assert its mark
against the underlying commercial activities); FTC v. Actavis, Inc., 133 S. Ct. 2223, 2227
(2013) (holding that a reverse settlement agreement between brand name and generic
pharmaceutical companies that resulted in delay of generic commercialization may be
anticompetitive).
158. See Ori Friedman, Necessary for Possession: How People Reason About the
Acquisition of Ownership, 36 P
ERSONALITY & SOC. PSYCHOL. BULL. 1161, 1161 (2010).
159. Id. at 1166.
160. Karen R. Neary et al., Preschoolers Infer Ownership from “Control of Permission,”
45 D
EV. PSYCHOL. 873, 875 (2009); Nicholaus S. Noles & Frank C. Keil, Exploring Ownership
45
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significant amount about public perception concerning the ownership of
real and physical personal property, our knowledge of the public
perception of intangible or intellectual property is in its infancy.
A limited number of psychology studies have begun to explore the
psychological conception of ownership for intellectual property. Adults
in many cultures recognize the ownership of ideas and believe that
plagiarizing others’ ideas is wrong.
161
It appears that this concept of the
ownership of ideas develops later than concepts of ownership of
physical property. Six-year-old, but not four-year-old, children make
negative moral evaluations of those who plagiarize the work of others
versus those who produce unique works.
162
These judgments indicate an
understanding that others have differentiated ideas and that copying
those ideas is problematic, at least in certain contexts. Children at this
age, however, evaluate stealing physical property much more negatively
than stealing other people’s ideas.
163
Further studies have found that
children value the contribution of ideas to an artistic endeavor more
than the contribution of labor.
164
Comparable studies of adult perception
surrounding the ownership of ideas have not been reported.
165
In a related vein, some studies have found that there can be a
perception of a transfer of ownership rights over physical property due
to the investment of creative labor in physical property.
166
Adults were
inclined to conclude that a person who manipulated clay into a figure
was entitled to the work product, rather than the original owner of the
clay.
167
While three-year-old children never recognized creative labor as
a basis for transferring ownership, some four-year-old children began to
justify ownership transfer based on creative investment.
168
This
indicates that concepts of owning intellectual property and acquiring
ownership of intellectual property begin to emerge at a young age.
in a Developmental Context, in ORIGINS OF OWNERSHIP OF PROPERTY 100–01 (Hildy Ross &
Ori Friedman eds., 2011).
161. Kristina R. Olson & Alex Shaw, “No Fair, Copycat!”: What Children’s Response to
Plagiarism Tells Us About Their Understanding of Ideas, 14 D
EV. SCI. 431, 432 (2011).
162. Id. at 434–37.
163. See id. at 435–38.
164. Vivian Li et al., Ideas Versus Labor: What Do Children Value in Artistic Creation?,
127 C
OGNITION 38, 42-43 (2013). Studies have not yet examined whether this effect exists for
inventive as well as artistic creation.
165. Note that these studies concern a form of ownership rights in ideas, rights that would
not be protected by intellectual property law. Both copyright and patent law preclude intellectual
property rights for ideas per se; intellectual property protection exists only for manners of
expressing or instantiating ideas. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S.
539, 556 (1985); Bilski v. Kappos, 130 S. Ct. 3218, 3225 (2010).
166. Patricia Kanngiesser et al., The Effect of Creative Labor on Property-Ownership
Transfer by Preschool Children and Adults, 21 P
SYCHOL. SCI. 1236, 1240–41 (2010).
167. Id. at 1237–38.
168. Id. at 1240.
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Intriguingly, these concepts of intellectual property ownership
appear rooted in a natural rights basis for intellectual property
protection. Though the psychology experiments discussed above were
not designed to test this issue, the results indicate that children’s and
adults’ recognition of the ownership of creative works is based in the
investment of creative labor. In the study testing the transfer of
ownership via the investment of creative labor, 67% of adults referred
to concepts of creative investment in explaining the basis for the
transfer of ownership rights.
169
These results are consistent with the
findings of the present study—that people understand intellectual
property rights based on the natural rights of creators rather than based
on a system designed to incentivize the creation and dissemination of
intellectual works.
The psychology of ownership also implicates the cognitive heuristic
of the “endowment effect.” The endowment effect refers to the well-
established phenomenon that individuals tend to value goods that they
own more highly than identical goods owned by others.
170
Professors
Christopher Buccafusco and Christopher Sprigman have conducted a
series of experiments that indicate the endowment effect occurs for
intellectual property as well as for physical property, finding that
owners of poems and of paintings valued the works more than potential
buyers.
171
Separate from this endowment effect, creators also are
influenced by a “creativity effect.”
172
Individuals who painted paintings
believed that the paintings were worth more than individuals placed in
the position of owning the paintings.
173
The creativity effect appears to
be based on an overly optimistic assessment of the quality of the work,
rather than an emotional attachment to the work or the amount of time
and energy invested in the work.
174
This creativity effect again appears
more aligned with a natural rights or expressive basis for intellectual
property rights, as opposed to an incentive basis. The present study
enhances our understanding of the psychology of intellectual property,
providing significantly more detail concerning the contours of public
perception and preferences in this area than was previously available.
169. Id. at 1238.
170. Russell Korobkin, The Endowment Effect and Legal Analysis, 97 N
W. U. L. REV.
1227, 1228 (2003); Richard Thaler, Towards a Positive Theory of Consumer Choice, 1 J.
ECON.
BEHAV. & ORG. 39, 44 (1980).
171. See Buccafusco & Sprigman, supra note 9, at 32; Buccafusco & Sprigman, supra note
37, at 4, 39–40.
172. Buccafusco & Sprigman, supra note 9, at 32.
173. Id. at 39-40.
174. See id. at 41–42.
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CONCLUSION
In a world where intellectual property rights have become
significantly more prevalent, important, and contentious, the
experiments reported here shed new light on the popular understanding
of intellectual property law and intellectual property rights. This study
has significant implications for intellectual property law and policy, as
the intellectual property system is premised on producing a certain set
of behavioral effects. The results of this study indicate that the
behavioral model of incentives on which the intellectual property
system is based cannot function optimally because popular conceptions
of intellectual property rights are not in accord with actual intellectual
property law. This discord can destabilize the legitimacy and the
effectiveness of intellectual property law.
The variance found here between public perception and intellectual
property law indicates that potential intellectual property producers
likely do not receive appropriate incentives to engage in creative
endeavors, to work with others on creative projects, or to commercialize
and distribute their intellectual work. Likewise, intellectual property
users likely do not receive appropriate signals concerning compliance
with intellectual property rights. These public perceptions are also
highly likely to influence juror, as well as some judicial and legislative,
decision-making concerning intellectual property rights. The intellectual
property system will remain hard-pressed to achieve its objectives given
the widespread disconnect between the public psychology of intellectual
property and the reality of intellectual property law.
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APPENDIX A
Scenario Two: Creativity Threshold
[creativity threshold scenario: copyright condition]
Alex is a writer who has just completed a new fictional book. Though
Alex’s story is new, both the writing style and story are somewhat
predictable. Stated another way, the book would be considered obvious
in comparison to existing works from the perspective of someone with
ordinary skill and experience in Alex’s field.
The following question concerns whether Alex should be entitled to
Intellectual Property protection for the book. Intellectual Property
protection would give Alex the exclusive rights to make and sell copies
of the book. Anyone who wanted a copy of Alex’s book would have to
obtain permission from Alex, and Alex could charge a fee for that
permission.
Should Alex be entitled to Intellectual Property protection for the book?
Please answer by selecting a number on the following scale ranging
from “Definitely Not” to “Definitely Yes.”
1 – Definitely Not
2 – Probably Not
3 – Perhaps Not
4 – Maybe
5 – Perhaps Yes
6 – Probably Yes
7 – Definitely Yes
**********
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[creativity threshold scenario: patent condition]
Alex is a scientist who has just completed a new mechanical invention.
Though Alex’s invention is new, both the development and invention
are somewhat predictable. Stated another way, the invention would be
considered obvious in comparison to existing works from the
perspective of someone with ordinary skill and experience in Alex’s
field.
The following question concerns whether Alex should be entitled to
Intellectual Property protection for the invention. Intellectual Property
protection would give Alex the exclusive rights to make and sell copies
of the invention. Anyone who wanted a copy of Alex’s invention would
have to obtain permission from Alex, and Alex could charge a fee for
that permission.
Should Alex be entitled to Intellectual Property protection for the
invention? Please answer by selecting a number on the following scale
ranging from “Definitely Not” to “Definitely Yes.”
1 – Definitely Not
2 – Probably Not
3 – Perhaps Not
4 – Maybe
5 – Perhaps Yes
6 – Probably Yes
7 – Definitely Yes
**********
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Scenario Four: Joint Creator
[joint creator scenario: copyright condition]
Blair is a songwriter who recently completed an initial version of a new
song. Blair contacts Cary, another songwriter who Blair has heard about
but never worked with before, and asks Cary for feedback on the song,
particularly concerning one section of the song that Blair feels does not
really work well. Cary considers the song and gives feedback to Blair,
including on the portion that Blair identified. Blair decides that Cary’s
recommendations solve Blair’s earlier concerns and incorporates some
of them into the final song. In total, Cary’s feedback was responsible for
about twenty percent, or one-fifth, of the final song.
Assume that Blair is entitled to Intellectual Property rights in the final
song. The following question concerns whether Cary should be entitled
to share Intellectual Property rights in the final song with Blair. Sharing
Intellectual Property rights would give Cary equal rights to distribute
and sell copies of the song, and to grant other people rights to copy the
song.
Should Cary be entitled to share Intellectual Property rights in the final
song? Please answer by selecting a number on the following scale
ranging from “Definitely Not” to “Definitely Yes.”
1 – Definitely Not
2 – Probably Not
3 – Perhaps Not
4 – Maybe
5 – Perhaps Yes
6 – Probably Yes
7 – Definitely Yes
**********
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[joint creator scenario: patent condition]
Blair is a software writer who recently completed an initial version of a
new program. Blair contacts Cary, another software writer who Blair
has heard about but never worked with before, and asks Cary for
feedback on the program, particularly concerning one section of the
program that Blair feels does not really work well. Cary considers the
program and gives feedback to Blair, including on the portion that Blair
identified. Blair decides that Cary’s recommendations solve Blair’s
earlier concerns and incorporates some of them into the final program.
In total, Cary’s feedback was responsible for about twenty percent, or
one-fifth, of the final software program.
Assume that Blair is entitled to Intellectual Property rights in the final
program. The following question concerns whether Cary should be
entitled to share Intellectual Property rights in the final program with
Blair. Sharing Intellectual Property rights would give Cary equal rights
to distribute and sell copies of the program, and to grant other people
rights to copy the program.
Should Cary be entitled to share Intellectual Property rights in the final
software program? Please answer by selecting a number on the
following scale ranging from “Definitely Not” to “Definitely Yes.”
1 – Definitely Not
2 – Probably Not
3 – Perhaps Not
4 – Maybe
5 – Perhaps Yes
6 – Probably Yes
7 – Definitely Yes
**********
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