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  • The Eureka Myth: Creators, Innovators, and Everyday Intellectual Propertyby Jessica Silbey
  • Joris Mercelis (bio)
The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property. by Jessica Silbey. Stanford, CA: Stanford University Press, 2015. Pp. 356. $25.95.

In light of the ongoing debate about perceived shortcomings of the American patent and copyright systems and the best ways to address them, Jessica Silbey's exploration of the presence or absence of intellectual property law in the daily lives of creative individuals is timely. Her book is based on fifty in-depth interviews with a broad range of people in New England and New York, including inventors, musicians, artists, filmmakers, and writers, as well as business agents and attorneys active in intellectual property–intensive industries. She convincingly argues that these interviews challenge an assumption underlying many arguments in favor of strong intellectual property (IP) protection: the notion that IP provides the economic incentives necessary to foster the production and dissemination of works of authorship and invention. Silbey questions this "classic incentive story" of IP (p. 108) on a step-by-step basis, in six thematic chapters that present a detailed empirical account of the nature of creative labor and the habits and values supporting it.

First of all, her research suggests that IP law is largely superfluous for initiatingcreative production: when embarking on a new project, the interviewees did not primarily think of IP as a means to recover the expenses they were likely to incur. In fact, they were often not thinking of IP law at all, and were unfamiliar with several of its provisions. The IP attorneys and corporate agents were, unsurprisingly, an exception. However, as Silbey emphasizes, even their understanding of the motives underlying successful innovative endeavors does not unambiguously support the economic incentive theory. The next steps in the book's analysis suggest that IP becomes more important in later phases in the development of creative work, be it of an artistic or scientific nature. But at these stages, too, IP law is significantly misaligned with the primary values, needs, and business strategies of the interviewees. For example, Silbey's research subjects compare developing their creative projects to "raising children." This metaphor accords with their emphasis on emotional rewards, rather than IP-generated revenue. It also captures their long-term horizons and appreciation of daily routines aimed at realizing gradual progress, rather than ingenious "eureka moments" more readily convertible into IP.

Silbey's discussion of various cases where research subjects overenforce or underenforce their legal rights also points to the limitations of IP law. She argues that interviewees' attachment to their professional reputation is an especially significant reason leading to occasional IP overenforcement. Conversely, the common practice of sharing creative works with users and [End Page 615]audiences to get feedback and build market share, among other reasons, regularly involves a deliberate IP underenforcement. Silbey is by no means the first to argue that justifications for IP that center on financial incentives provided to rational economic actors do no justice to the actual mix of motives and strategies underlying the production and dissemination of innovative works. Given the continued influence of the economic incentive theory of IP in the legal and policymaking communities, it is, however, worth repeating that message, which the interviews support in illuminating detail. Moreover, the author adds analytical depth to the different chapters by connecting her findings with those of previous investigations and by drawing on literature from other fields, including research in literary studies and on the psychology of creativity.

Occasionally the book is, nevertheless, too repetitive: by the time readers get to the final chapters, they are likely to be familiar with several of the more notable passages in Silbey's interviews, such as the story of a firm that stimulated its scientists to submit their "coolest ideas" (brought up in five of the book's six chapters). It therefore seems unnecessary to re-use identical quotations. Readers of this journal may also regret that Silbey does not address historical studies that could have provided longer-term perspectives on, among other things: the separation of the creation and ownership of innovative work as a cause of potentially harmful misalignments...

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