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Kal Raustiala and Christopher Jon Sprigman

The law and economics of intellectual property (IP) has long rested on a foundational, if implicit, premise: that IP law is best understood by studying how legal rules operate in actual markets for creative work. Yet this way of thinking about IP leaves open a host of important and fascinating questions. Can innovation flourish in the absence of IP protection? Can market incentives, psychological factors, social norms, first-mover advantages, or any number of other factors, serve as whole or partial substitutes for IP rights? In this chapter, we explore IP’s ‘negative space’—that is, those creative and innovative fields that, for historical, doctrinal, or other reasons are not addressed by IP law—and the scholarship that has begun to illuminate it. This literature is barely more than a decade old, but already it has shaped how scholars today think about IP. In particular, it shows that the link between IP and creative incentives is more conditional and contested than many believe.