Book Review: Creativity, Law and Entrepreneurship

Creativity, Law and Entrepreneurship, edited by Shubha Ghosh and Robin Paul Malloy.  Edgar Elgar Publishing, 2011 (270 pages). Hardcover, ISBN 978-1-84844-987-9, $150.

Recently, some faculty members discussed whether the law is a creative endeavor—debating whether attorneys are identifying existing arguments that are appropriate for particular cases or creating new arguments. Considering the question myself, I remembered continuing education sessions I attended in which estate planners have suggested novel strategies to maximize clients’ estates for their beneficiaries. I hoped that Creativity, Law and Entrepreneurship would broaden my thinking on this question.

The 11 essays included in the collection present the reader with a discussion that, according to one of the editors, “is ultimately headed towards a jurisprudence of market and intellectual property theory that … focus[es] attention to human activity.” (5). Stemming from the Workshop on Creativity, Law and Entreprenurship held at the University of Wisconsin in April 2009, the papers included address a range of topics and often present themselves as beginning points of discussion. They are largely theoretical in their analysis, and they range in tone from high theory to down-to-earth. Creativity, Law and Entrepreneurship would be a welcome addition to an academic library and possibly to the library of an intellectual property boutique firm.

Not surprisingly, with the focus on creativity, many authors consider intellectual property law. Michael J. Madison raised the theoretical question of whether craft works are creative—describing the protections currently available for craft work and suggesting that “an expanded theory of copyright that embraces creativity in the tangible thing, that is, in craft works, might offer an additional analytic tool for measuring the proper scope of copyright as a whole” (42). 

Debora Halbert also considered the role of copyright in society. Her very interesting piece analyzed copyright and its protections and meaning for cultural progress in the context of anarchist publishers. Her analysis of interviews with anarchist and radical publishers highlights the complexity of copyright law as it affects anarchist publishers and impliedly the publishing industry in general.

In the past, for example, New York City relied heavily on the manufacturing of goods as its economic base. As manufacturing left the city, the economy came to rely more on the provision of services—whether they are restaurant (wait staff, chefs, sommeliers), entertainment (actors, dancers, singers), or professional advice (lawyers, accountants, hedge fund managers). Megan M. Carpenter considers how this change has affected other parts of the country, using the lens of West Virginia, raising the question, “how do we move from industry to information, from coal to content?” Carpenter notes that intellectual property is not bound by geography and considers how the statutory landscape at both a federal and a state level contribute to the growth of the information society and the development of new economic possibilities.

“Patenting by High Technology Entrepreneurs” was a particularly interesting essay in the collection. The authors, Stuart J.H. Graham and Ted Sichelman, gathered empirical data about how technology startups use the patent system to protect their inventions. The authors evaluated factors leading to startups decisions to patent—or not. Unfortunately, the recent passage of the Leahy-Smith America Invents Act (AIA) and the change of the patent system from “first to invent” to “first to file,” may call into question the usefulness of conclusions drawn from their data set.

Creativity, Law and Entrepreneurship will likely not be the last word on legal issues related to this subject. Many of the authors noted that their essays are starting points for further study. No doubt, as politicians, academics, and others consider the development of the world economy, this area will be the subject of additional scholarship.

Reviewed by Margaret (Meg) Butler, associate director for public services at Georgia State University College of Law Library.