Can creativity flourish and remain within the control of commoners? Or will businesses inevitably capture creativity and convert it into private property to make money?
Copyright and trademark law are certainly designed for those purposes. They presume a market identity for creators of art, software, and new knowledge. And in fact, the corporate world routinely vacuums up creativity that's developed through commoning – images, music, know-how, social sharing.
Yet history tells another story. It shows that creativity naturally thrives in commons, and need not enter the marketplace to find support or fruition. Commoning is an ideal vessel for the collaborative development of new ideas. The process may involve direct cooperation or merely proximate respect and influence, but in either case, introducing property rights and profit-making can seriously mess up the collective collaborations that yields innovation.
When I learned about Professor Aaron Perzanowski, a legal scholar at the University of Michigan Law School, I decided to quiz him about his work on my podcast, Frontiers of Commoning (Episode #45). I wanted to learn more about the bottom-up, social dynamics of creativity, how commoners sustain them, and the inevitable collisions with intellectual property law.
Perzanowski's 2017 anthology of essays, Creativity without Law, edited with Kate Darling, goes into great detail about this topic. The essays show that, contrary to the premises of intellectual property law, artists share. They come up with new ideas by working within a community of peers. They are not solo geniuses,but "nested-I's" working within a community.
Chefs constantly come up with new entrees and desserts even though they don't have copyright protection for recipes. Fashion designers dream up "new" and revamped dress designs all the time, and the industry flourishes, even though any garment can be copied by anyone. (It's the trademarked name that remains proprietary.)