Today, April 26, is the day marked each year since 2000 as "Intellectual Property Day" by the World Intellectual Property Organization (WIPO). There are many areas where EFF has not historically agreed with WIPO, which has traditionally pushed for more restrictive agreements and served as a venue for domestic policy laundering, but we agree that celebrating creativity is a good thing.
As the saying goes, though: when you're a hammer, everything looks like a nail. For the World Intellectual Property Organization, it may seem like creativity and "intellectual property" are inextricably linked. That's not the case. In the spirit of adding to the conversation, we'd like to honor all the creativity and industry that is happening without a dependence on a system intellectual property.
There's an important reason to encourage creativity outside the bounds of increasingly restrictive laws, too. As Ninth Circuit Chief Justice Alex Kozinski eloquently explained in a powerful dissent some 20 years ago, pushing only for more IP restrictions tips a delicate balance against creativity:
Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it's supposed to nurture.
It's incumbent on all of us who want to encourage creativity to continue to explore structures that reward creators without also restricting speech.
Comedy, Fashion, Cooking, Magic, and More
In the areas known as copyright's "negative spaces," there is tremendous innovation and consistent creativity outside of the intellectual property system. Chefs create new dishes, designers imagine new styles, comedians write new jokes, all without a legal enforcement mechanism to restrict others from learning and building on them.
There may be informal systems that discourage copying—the comedy community, to take one example, will call out people who are deemed to be ripping off material—but for the most part these work without expensive litigation, threats of ruinous fines, and the creation of systems that can be abused to silence lawful non-infringing speech.
Contributing to a Creative Commons
The free software movement may have popularized the idea of creating digital media that can legally and freely be shared and expanded, but the free culture movement has pushed the idea further than ever before. There are some projects we're all familiar with—Wikipedia is perhaps the most prominent, creating an expansive and continuously updated encyclopedia that is freely accessible under permissive terms to the entire world.
Focusing on this year's World IP Day theme of movies, there have been some impressive contributions the commons over the years. Nina Paley's feature animation Sita Sings The Blues, which she released into the public domain, has spread widely, inspired more work, and earned her money. The short films from the Blender Foundation have demonstrated cutting-edge computer graphics made with free software and, though they've sometimes been on the receiving end of bogus copyright takedowns, have been watched many millions of times.
Kickstarting and Threshold Pledges
Finally, crowdfunding platforms like Kickstarter and Indie-Go-Go have made a major splash in the last few years as another fundraising model that can complement, or even replace, traditional copyright exclusivity. These platforms build on theoretical framework laid out by scholars like John Kelsey and EFF board member Bruce Schneier in the influential "Street Performer Protocol" paper, which set out to devise an alternative funding system for public works.
Looking at movies in particular: Kickstarter alone has enabled hundreds of millions of dollars of pledges, hundreds of theatrical releases, and seven Oscar-nominated films (including Inocente, winner of the Best Documentary Short category). Along with other crowdfunding sites, it has allowed the development of niche projects that might never have been possible under the traditional copyright system.
As the Constitution tells us, copyright and other "intellectual property" systems can, when calibrated correctly, promote the progress of science and the useful arts. We continue to work pushing for a balanced law that would better achieve that end.
But it's also clear from these real world examples that other systems can achieve that goal as well. Promoting creativity, progress, and innovation is an incredibly valuable mission—it's good to know that it doesn't have to come through systems that can be abused to stifle valuable speech.