Beyond Eureka: What Creators Want (Freedom, Credit, and Audiences) and How Intellectual Property Can Better Give It to Them (by Supporting Sharing, Licensing, and Attribution)

Intellectual Property, Copyright and Trademark and Patents

Article Snapshot


Colleen Chien


Michigan Law Review, Vol. 114, pp. 1081-1107, 2016


Intellectual property (IP) law gives creators the right to stop others from using their created works. But IP law may fail to support creators’ achievement of goals such as creative freedom, proper attribution, and sharing.

Policy Relevance

IP reform should be designed to better support creators’ goals.

Main Points

  • Jessica Silbey's book, The Eureka Myth: Creators, Inventors, and Everyday Intellectual Property includes interviews with creators such as filmmakers, software engineers, and scientists to explore how IP law could better support creators.
  • Creators most value creative freedom, credit, and strong relationships with audiences and customers; IP law primarily gives a creator the right to exclude others from using their work, and may be poorly aligned with creators’ goals.
  • Policymakers should reform IP law to support goals other than exclusion; changes might include:
    • Making it easier to use “orphan works.”
    • Supporting humanitarian sharing or placement of works in the public domain.
    • Encouraging users to give accurate credit to creators by taking attribution into account when copyright is enforced.
    • Codifying “best practices” in attribution.
  • Surveys find that software patents are believed to inhibit innovation; aggressive assertion of patent rights by “patent trolls” cause firms to discontinue offering certain products and to reduce research and development efforts.
  • Trademarks protect firms against consumer confusion and support reputational interests; however, firms may overreach in seeking to enforce their trademark rights.
  • Creators share content to get feedback, build reputation and market share, and earn loyalty; creators can share by choosing not to enforce IP rights or by contract, but follow-on innovators do not know when they can rely on a creator’s commitment not to assert IP rights.
    • Grants of copyright to the public domain could be made irrevocable.
    • Lawmakers could create a “defensive-only” patent option.
    • Creation of a registry to record pledges to share would better support sharing.
  • IP law should recognize the importance of attribution and reputation to creators; “moral rights,” which give creators the right to block specific uses of their work, are absent in US law except for some visual works.

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