Elgar Law and Entrepreneurship series
Edited by Shubha Ghosh and Robin Paul Malloy
Chapter 11: Institutionalization of Creativity in Traditional Societies and in International Trade Law
Christoph B. Graber INTRODUCTION Creativity is the humus of a prosperous and species-rich cultural environment. Intellectual property rights (IPRs)1 are pivotal in fostering creativity since they allow creators to refinance their investments in labour and capital. However, the interrelations between creativity and IPRs have been strongly criticized in the past few years by two groups of legal scholars approaching the topic from two distinct perspectives. The first group of critics fear that the combined effects of raised standards of IP protection2 and technological development endanger a vibrant public domain, which is a prerequisite for creativity in the internet age. With a focus on copyright law, this so-called public domain movement questions whether the existing IP model appropriately reflects the constitutional balance between the private interests of authors and the public interest in enjoying broad access to their productions.3 These critics doubt whether, under the conditions of a digital networked environment, the existing system of IP protection provides the best incentives to promote creativity. Arguably, this balance, constructed in a pre-internet area of lawmaking,4 has been disrupted since digitization and the internet inflated the value of copyright law5 and increased its domain.6 A second group of critics has been questioning the relationship of creativity and IPRs from a postcolonialist perspective. This group has been accusing modern IP law of having a colonising effect on indigenous creativity. Arguably, the modern legal narrative of IP is imposed on indigenous forms of social organization and cultural practice. Moreover, IP law reconstructs traditional...
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