Updated 4/20/09
Lisa Alexander (University of Wisconsin Law
School)
“Restoring Trust in Microenterprise Financing: Communities,
Markets, Social Capital & Law”
Emerging legal scholarship about the current global economic
crisis predictably focuses on broad market failures such as the
collapse of the U.S. housing market, abuses in corporate executive
compensation, lax U.S. securities market regulation, and other
turmoil in global markets. Scholars are pondering how to develop
appropriate broad-scale regulatory responses. Yet, the recent
global economic crisis also provides a significant opportunity to
explore the implications of the crisis for micro entrepreneurs in
ethnic and immigrant communities in the United States. Ethnic and
immigrant entrepreneurship is a topic often relegated to the
margins of scholarship about business, law and economic growth in
U.S. markets. However, before the global economic crisis, ethnic
and immigrant entrepreneurs contributed substantially to economic
growth in many densely populated U.S. communities. In fact,
immigrants in many cities started a greater share of businesses
than native-born residents and served as engines of economic growth
in many U.S urban centers. Although current conditions may have
stalled such growth, future increases in immigration and ethnic
diversity in all developed nations, suggest that ethnic and
immigrant entrepreneurship will be a significant driver of local,
regional, national, and global economic growth in the not so
distant future. Thus, the current crisis represents an opportunity
to move studies of ethnic and immigrant entrepreneurship from the
margins to center stage.
This Article focuses on financing sources for micro
entrepreneurship in low- to moderate- income ethnic and immigrant
communities in particular. Notably, for years, low-income
immigrant and ethnic entrepreneurs in the U.S. have relied on
informal peer savings and lending mechanisms for
micro-entrepreneurship, called rotating savings and credit
associations. Rotating savings and credit associations (ROSCAs) are
groups of individuals who informally come together to make regular
cyclical contributions to a common fund, which is then given as a
lump sum to one member in each cycle. Immigrant and ethnic groups
in the U.S. have consistently used rotating savings and credit
associations to create savings to pay for small-scale personal
expenses and entrepreneurial activity. Trinidadian immigrants call
such mechanisms a sou-sou; Mexican immigrants, the tanda; West
Africans, the esusu; the Japanese, the tanomoshi; the Chinese, the
hui; the Koreans, the gae; the Filipinos, the Hulugan; and the
Vietnamese, the Bui. These forms of peer savings and lending rely
on trust between members of various ethnic groups to serve as a
form of collateral. This Article explores the relationship between
informal savings and credit mechanisms built upon social capital
and trust, and more traditional formal funding sources such as bank
loans and other capital investments.
Some recent scholars have argued that peer lending and ROSCAs
are inadequate to provide low-income entrepreneurs with sufficient
capital for extensive growth. This Article will analyze the social
utility of these non-traditional forms of credit and their related
offspring in light of the current credit freeze and the global
economic crisis. What is the social utility of informal peer
savings and lending models for social entrepreneurship when
traditional markets are devoid of capital, credit and trust? Given
the current crisis, are these forms of credit and financing
rational economic alternatives, or at least options that should be
included in a capital raising plan? Further, what is the role of
place in facilitating the social connections and norm generation
upon which informal rotating credit associations rely? Are such
mechanisms only useful to discrete, insular, low-income ethnic and
minority communities that are geographically isolated? Has peer
lending over the internet replaced such mechanisms? Do these
informal markets continue over generations? Do second and third
generation immigrants still rely on such forms or do they
participate in traditional markets? Further, what is the role of
formal law in maximizing the social and economic utility of such
informal mechanisms? Can we formalize the possible benefits of
informal market mechanisms, while still connecting communities to
more traditional markets?
Olufunmilayo (Funmi) Arewa (Northwestern
University School of Law)
“All Work and No Play: Intellectual Property as Serious
Business”
Intellectual property frameworks have in many respects come to
focus on the protection of work, as reflected in creations of
corporate and other professional creators. Such creators have also
played a significant role in shaping the language and
interpretations of current intellectual property frameworks in the
United States. This professionalization of creation also reflects
the creation of new models of creation based within corporate
contexts in the form of established corporations that are often
referred to as the culture industries, as well as models of
individual creation that reflect significant influence from the
structure of the culture industries. This work model of creativity
does not leave much room for play, which is an aspect of creativity
that deserves greater attention in discussions of intellectual
property. This paper will touch upon some implications of the
development and growth of the culture industries for intellectual
property. It will focus specifically on some implications of the
professionalization of creation and performance for those who may
fall outside of those categories, including amateur creators and
listeners. It will also touch upon changing historical notions
about who is an “authorized” creator and the ways in which
intellectual property frameworks relate to conceptions of work and
play.
Megan Carpenter (Texas Wesleyan University School
of Law)
“From Coal to Content: The Role of Intellectual Property in
Transitional Economies”
Deven Desai (Thomas Jefferson School of Law)
“Individual Branding: How the Rise of Individual Creation and
Distribution of Cultural Products
Confuses the Intellectual Property System”
Much of the current intellectual property system can be
explained as meeting the needs of a cultural industry based on
individual authors who look to corporate entities to mass produce
and distribute cultural products. Today, however, as digital
technology decreases the cost of both the production and
distribution of cultural products, individuals have taken on
previously corporate roles. Authors now seek copyright and
trademark protection for their work in ways that expand authorial
control at the expense of the intellectual property system as a
whole. This paper argues that these new modes of generating value
may require protection but that the current intellectual property
system is not fully equipped to provide such protection without
upsetting the balance between creators and users. As such this
paper seeks to map authors’ new interests as a way to show where
the intellectual property system can meet these new needs or where
it must change. Last given the speed with which technology and this
type of production evolves, the paper suggests that the law may not
best way to manage many of these interests at all.
William T. Gallagher (Golden Gate University
School of Law)
“‘Are They Real Lawyers?’: The Role of Patent Prosecutors in
the Patenting (and Inventive?) Process”
My research-in-progress is an empirical study of patent
"prosecutors"-lawyers who are licensed to represent clients before
the United States Patent and Trademark Office for the purpose of
securing patent rights to inventions. This study is part of a
larger project that explores how, why, and to what effect lawyers
help clients acquire and enforce intellectual property rights.
This research is based on data derived from semi-structured
face-to-face interviews with lawyers who regularly prosecute
patents on behalf of clients. One theme I am exploring in this
research is what role(s) patent prosecutors play in the patenting
process. My research also focuses on the strategic choices made by
patent lawyers in the process of patenting inventions.
Christoph-Beat Graber (University of Lucerne)
“How Is Creativity Manifested in Traditional Cultural Systems and
within International Trade Law?”
Although many indigenous peoples in the world in certain
respects are still strongly rooted in their traditional forms of
life and cultural practice in other respects they are inclined to
opening up and gradually move towards more modern forms of social
organisation. This gradual shift from tradition to modernity is
well reflected in the various ways indigenous peoples make use of
their tangible or intangible products of creative intellectual
activity (commonly known as traditional cultural expressions or
TCE). On the one hand, indigenous peoples are keen to keep their
sacred TCE secret and to prevent its unauthorised disclosure and
subsequent use. On the other hand, certain indigenous creators are
gradually moving away from their traditional role as custodians of
a clan's cultural heritage towards a more modern role as artists
interested in exhibiting their works in public and selling them on
the art market. The difficult questions here are the following: Who
is determining which TCE can be traded. How are issues of ownership
and benefit sharing to be resolved? Are such questions to be
resolved under customary rules of indigenous peoples or under
modern law?
The paper looks at recent developments in international law and
policy making in the fields of human rights, intellectual property
and cultural heritage to make sure that the diverging interests
described are adequately respected. Secondly, the paper inquires
how rules of international trade law (including the WTO) could be
improved in order to better respond to the desire of indigenous
peoples to more actively participate in international trade with
certain TCE without renouncing on their claims of
self-determination and self-governance in cultural respects vis
vis their “host countries”?
Stuart J.H. Graham (UC-Berkeley School of Law
(Boalt Hall) and Georgia Institute of Technology) and
Ted M. Sichelman (Berkeley Center for Law &
Technology)
“The 2008 Kauffman-Berkeley Patent Survey: Why Do Entrepreneurs
Patent (And Not)?”
Numerous scholars have proposed many different explanations for
why inventors and innovative companies patent. Few scholars,
however, have conducted empirical studies seeking to confirm or
deny these theories. Furthermore, there are only a handful of
studies examining how entrepreneurs and start-up companies use and
are affected by the U.S. patent system, and none answers the
question presented in our title.
We first briefly survey the dominant theories of why innovators
file for patents and why they forgo patenting, focusing on how
well, if at all, these theories apply to start-up companies. Next,
we examine the existing empirical data on the topic and find it
generally inconclusive.
Last, we describe results from the 2008 Berkeley Patent Survey,
the first survey in the United States examining patents and
entrepreneurship.
Richard Gruner (John Marshall Law School)
“The Evolution of Collaborative Innovation: Evidence from the
Patent Record”
This paper analyzes changes in collaborative innovation groups
as reflected in multi-inventor patents. The nature of collaborative
processes leading to significant technical advances has been the
focus of considerable sociological and managerial studies. These
studies have sought to understand the features of contacts and
interactions between multiple researchers needed to promote
effective collaboration. Two different types of collaborative
efforts have been considered in the past: first, multi-party
innovation within a particular field where the objective is to
effectively combine the work of several similarly situated and
trained specialists and, second, multi-party innovation involving
linkages and combinations of the work of parties from different
disciplines.
One key area of study is the type of personal interaction
between multiple researchers that is needed to promote effective
communication and exchanges of ideas to produce new designs and
discoveries. From early models of university research labs and
industrial engineering facilities that stressed face-to-face
interactions between multiple researchers, group innovation efforts
have sought to move to more distributed innovation groups based on
modern communication systems. These newer models of group
innovation would depend heavily on new communication technologies
such as telephone and internet linkages to help multiple innovators
in physically separate locations to work effectively as teams.
These communications technologies would help the team members to
keep apprised of the each others work, to share findings quickly
and effectively, to coordinate and combine their results in useful
ways to design new innovations and research projects, and to avoid
duplication of design and testing efforts.
The present research project seeks to use patent records to
measure the effectiveness of these new innovation models across two
dimensions: increases in collaborative efforts leading to
patentable innovations and increases in the frequency of physically
displaced innovation among multi-party inventions. The research
design utilizes a randomly selected sample of 800 patents each from
1976 and 2006 to measure two characteristics: 1) the percentage of
patented inventions that were products of group innovation (that
is, which had two or more co-inventors associated with the relevant
patent) and 2) the percentage of the multi-inventor patents that
involved at least one researcher who was physically remote from his
or her colleagues and thereby probably not able regularly commute
and engage in face-to-face interactions with fellow inventors. For
the purpose of assessing physically remote inventors, a party was
considered remote and unlikely to be in regular face-to-face
contact with fellow researchers if his or her location was 100
miles or more displaced from that of lead inventor specified for a
particular patent.
The research tested two hypotheses. First, it was expected that
the advent of the Internet and the improvement of other
communications technologies between 1976 and 2006 would have
resulted in a significant increase in the frequency of
collaborative efforts over this period and a greater fraction of
patented innovations emanating from group innovation as reflected
in a greater percentage of multi-inventor patents. Second, it was
expected that the advent of greater communications capabilities
between 1976 and 2006 would enable greater innovation at a
distance, resulting in a greater percentage of multi-inventor
patents in which the inventors were not all in the same local
geographic area.
Interestingly, the results of the research bore out the first
of these hypotheses, but not the second. Multi-inventor advances
were found to be significantly more prevalent in the post-Internet
patent sample than in the pre-Internet set. However, while there
was some increase in the percentage of multi-inventor patents with
physically separated inventors, the change in this frequency was
rather small, suggesting that the Internet has not made group
innovation at a distance substantially easier or more effective. In
short, distance still matters and face-to-face interactions appear
to still be very important even as more and more researchers appear
to be working in groups to produce multi-party innovations. While
the communication capabilities of the Internet may still be
important in promoting local interactions, the ability to form
effective innovation groups appears to depend on some need for or
advantage to physical interaction.
Further research will be needed to determine the continuing
advantages afforded by physical interactions between multiple
innovators. There may be several different sources of these
physical proximity advantages. These may include advantages
afforded by organizational contexts, such as the fact that
researchers work best together if they are associated with a
particular corporation or university and work together in a
particular facility with preexisting, coordinated research
resources and infrastructure. Alternatively, it may be that
communication of research ideas or results is still most
effectively accomplished through physical interactions between
multiple innovators. If this is the case, it may be possible to
rethink and augment communications methods to make communication at
a distance more effective for researchers and to better facilitate
innovation without physical interactions. Finally, it may be that
researchers who share social interactions of the sort facilitated
by physical proximity form better teams and are more productive
than their physically remote counterparts. If this is the case, the
solution for better innovation at a distance may lie in mechanisms
for innovation team building that will operate in addition to the
interactions needed for particular engineering or research
projects.
Debora J. Halbert (University of Hawaii at Manoa)
“Creativity without Copyright: Anarchist Publishers and their
Approaches to Copyright Protection"
The prevailing economic model asserts that creativity does not
become fully incentivized unless a property right in the final
product is secured. However, ample evidence exists that this claim
is at best only partially true. For example, many people create
without the intention of selling their creative work commercially,
but those engaged in the professional production of culture require
copyright protection in order to generate future productivity. This
paper investigates areas where commercial creativity does not
require copyright. The paper will report on a survey of anarchist
presses operating primarily in the United States and Europe and the
range of copyright statements that can be found functioning within
these presses. Specifically, I'll look at anarchist presses as a
business model that offers a range of perspectives on copyrighted
materials from the use of traditional copyright to a blatant
rejection of copyright and authorship itself. The working
hypothesis is that even in the world of commercial publishing, not
all business models have to look the same and that it is possible
to function without copyright law to pursue economic reward.
Steven Hetcher (Vanderbilt University Law School)
“The Challenge of Monetizing User-Generated Content”
My article will explore user-generated content which I will
characterize as perhaps the single most important development in
the domain of creative content in recent years. On the dominant
economic account, it is dubious whether user-generated content
should even be copyright protected. The reason is that on the
economic model, the government doles out a mini-monopoly in order
to solve the collective action problem that arises due to the
public goods structure of IP works. All rational actors will seek
to free ride on the provision of public goods by others since their
provision is costly and hence it is better to let others provide
the goods and for one to free ride on their provision. This core
framework of the economic approach to copyright is completely
upended by most user-generated content, however, which appears not
to be subject to the free rider problem. Instead, people by the
millions create works in the millions despite an apparent lack of
economic incentive to do so. Yet early experience has shown that
such works, as for example those found on Facebook, may possess
great economic value if they can be monetized.
The question that arises in the present context is what do the
special features of UGC amount to when it comes to the issue of
entrepreneurship? On the surface, we should expect the connection
to be different from the typical one that exists between
entrepreneurs and creative works. The obvious reason is that
typically entrepreneurs seek to monetize the value of creative
works by funding their creation or acquiring rights to works
already created in order to then make money by means of controlling
the consumption of these works. Arguably, however, this whole model
must be rethought in the context of UGC works. If the works are not
created pursuant to monetary incentives, then the entrepreneur must
determine by what other means the creation and legal control of
such works might be achieved if the normal monetary incentive is
not necessarily at work in the production process for goods of this
sort.
Indeed, recent work of Benkler and others suggests that
monetary incentives may be counter-productive in that in some
“sharing” contexts the introduction of monetary incentives may
actually reduce the motivation for creation. In other contexts, the
introduction of property rights may serve as a drag on a system of
so-called “peer production” of certain sorts of works. The
system of production may be most efficient when information goods
can be shared in a dynamic fashion without the ever present need to
engage in contractual relationships with regard to the underlying
peer-production goods. Benkler has focused on examples such as
Linux software or Wikipedia, both of which are ongoing peer
productions that at their core are entrepreneur-free, as it were.
In other words, Wikipedia and Linux do not have business models.
Yet, entrepreneurs are nothing if not resourceful and even in the
case of peer productions such as Wikipedia and Linux, where the
core creative content is provided for free, business models are
beginning to emerge. Entrepreneurs at companies such as Red Hat in
the case of Linux and Wikia in the case of Wikipedia have
discovered means to profit from the free acts of creativity of
others. The goal of my article will be to come to a better
understanding of the new types of collaborative and entrepreneurial
relationships that are emerging or that might emerge between
entrepreneurs and the creators of user-generated content.
Robin Paul Malloy (Syracuse University College of
Law)
“Real Estate Transactions, Market Exchange Theory, &
Entrepreneurship”
This paper expands on work begun in two of my earlier books:
Law and Market Economy: Reinterpreting the Values of Law and
Economics (1), and Law in a Market Context: An Introduction to
Market Concepts in Legal Reasoning (2). In each of these books I
elaborate on a theory of law in a market context. I address the
market as a place of meaning and value formation, and focus on the
networks and patterns of exchange in human relationships. This is a
cultural-interpretive view of markets that is unconstrained by
certain assumptions used by those who understand economics as a
science of choice rather than as a semiotic system for
communicating meaning in the networks and patterns of human
relationships.
In market exchange theory, or what I have elsewhere termed law
and market economy, it is assumed that people form beliefs as
predicates to action. Therefore, fixation of belief comes before
market choice, and we need to understand the process by which we
fix belief if we want to understand law in a market context.
Moreover, fixation of belief arises from a communicative process,
and is not dependent on methodological individualism or an
endogenous economic calculus.
In this paper I am addressing a small part of a much larger
project on developing a theory of real estate transactions as an
entrepreneurial process; as a process of capturing and creating
value through exchange. There are a number of parts to the overall
theory but this paper only focuses on the way in which
entrepreneurship informs the exchange relationship in a real estate
transaction. In examining the structure of a transaction it is
important to consider the various perspectives one might take in
interpreting the exchange. I identify three categories of
perspective as central to understanding the structure of a real
estate transaction. These three perspectives include
entrepreneurial focus, exchange relationship, and transactional
type. Of relevance here is entrepreneurial focus which includes
three classifications; transactional entrepreneur, speculator
entrepreneur, and innovator entrepreneur. Each type of entrepreneur
brings different expectations to the exchange.
In general I define an entrepreneur as:
--a person with a special alertness to the opportunity to
capture and create value from changes in the existing networks and
patterns of exchange (including gaps in information),
--who forms a belief concerning the potential future value to
be gained from exploiting the observed opportunity, and
--acts on that belief in a cost effective way with the hope of
transforming the hypothesized (potential) value into actual value.
(1) Cambridge University Press, 2000; published in English and
translated into Chinese and Spanish.
(2) Cambridge University Press, 2004.
Sean O'Connor (University of Washington School of
Law)
“The Central Role of Law as a Meta Method in Creativity and
Entrepreneurship”
A core theme of traditional intellectual property (IP) law,
policy, and scholarship is its focus on incentivizing the creation
of inventions and artistic works. This story has never made much
sense as many scientists, technologists, artists, and artisans
create for purposes other than the IP rights they may receive. But
it also belies an unfortunate fixation on artifacts as the locus of
human ingenuity. This paper proposes that instead it is the methods
of innovation that are the true locus of human progress. Thus, from
a historical perspective, one finds that the Scientific Revolution
was a revolution in methods of inquiry just as the Renaissance was
a revolution in methods of artistic and artisanal activities. In
fact, these overlapping pivotal developments in Western history now
seem to be largely the result of a fruitful cross-pollination of
methods from different fields (art utilizing developments in math
and science and vice versa). The innovation did not stop with
methods of direct production of artistic, artisanal, scientific, or
technological works however. Perhaps most important from a long
term perspective, the revolution in methods of the Renaissance and
Early Modern periods also generated "meta methods" to create a
supportive infrastructure for not only the creation of these kinds
of new works and artifacts, but also for the successful development
and dissemination/distribution of useful or usable embodiments of
them. Thus this period saw the creation of modern patent and
copyright systems, as well as new business forms such as the joint
stock corporation for risky, capital intensive ventures. The genius
of such law based meta methods was that they could support the
ongoing evolution of human innovation and its exploitation, without
being tied to any particular innovation. In other words, they
implicitly employ an evolutionary perspective that sees innovation
as a method to develop artifacts that are suitable for a certain
set of background conditions at a given time. When the background
changes, the artifacts likely must too. Accordingly, an obsessive
focus on "great works" - artifacts that stand the test of time -
has obscured the proper role for innovation methods and meta
methods. At the same time, some of the most contentious issues in
IP today involve exclusive rights to lower levels of these methods
such as business and tax method patents. This paper establishes the
different levels of methods and meta methods, with special focus on
the law based meta methods, in a way that illuminates critical
policy decisions by ascribing some of them to the support of
creation/invention and others to the support of entrepreneurship
that translates the original creation/invention into usable,
distributable embodiments. In doing so, the paper affirms those who
have argued that the existing IP systems are primarily directed to
support the latter, not the former. Finally, the paper explores the
innovation represented by these law-based meta methods themselves
and the implications these insights have for contemporary policy to
foster creativity and entrepreneurship.
--end of list--
