Creativity and Alternatives to Intellectual Property

Critiques of dominant approaches towards the legal protection of creative outputs through patent and copyright law have led to the emergence of alternative approaches such as open licensing models. These alternative approaches have in common the goal of fostering creative recombination based on broader access to knowledge and products (in the sense of a public domain) through regulation via private contracts, licenses or organizational forms. Research on alternative regulatory approaches has been dominated by legal and economic studies with a focus on the macro level. So far, however, little attention has been given to studying the creativity-shaping effects of alternative approaches at the level of organizational and professional practices for example, within and between companies or in relations with public (educational) institutions. Based upon current theories from business and organization studies, the project will develop a regulation-as-a-practice approach through a comparative analysis of the fields of pharma (studying alternatives to patents) and music (studying alternatives to copyright). This project will thus investigate how organizational actors understand, structure and use alternative regulatory approaches and how the organization of creative processes differs in such cases from those operating under dominant approaches to intellectual property rights. In so doing, this project aims to provide (1) a mapping of alternative approaches, their perceived impacts on regulatory uncertainty, and the ways they are enacted through practices in creative processes; (2) a comparative analysis of creative practices and ways of dealing with regulatory uncertainty under dominant and alternative intellectual property regimes; and (3) developing a conceptual model of the interrelationship between regulatory uncertainty and creative processes from such a regulation-as-practice perspective. The results of the project will contribute to a better theoretical and empirical understanding of the implications of dominant and alternative approaches for reducing and inducing regulatory uncertainty in creative processes.

The project "Organizing Creativity under Regulatory Uncertainty: Alternative Approaches to Intellectual Property" explored the impact of regulatory alternatives on organizing creative practices. The research team of Leonhard Dobusch (PI at University of Innsbruck), Sigrid Quack (PI at University of Duisburg-Essen), Milena Leybold (PhD fellow at University of Innsbruck), and Konstantin Hondros (postdoctoral researcher at University of Duisburg-Essen) began this research with a comparative analysis of alternative regulative approaches in the pharmaceutical and music industries. We compared 52 cases of organizations that criticize conventional IP strategies. Our analysis revealed how the motivation for mobilizing alternative approaches to IP is routed in different forms of (moral) critique: (1) limiting exchange of and access to a product, (2) detrimental effects on economic viability of markets, and (3) hindering creativity and innovation. Soon after our research began, the Sars-CoV-2 pandemic hit, providing us with an extreme context to explore creative practices in the pharmaceutical field, in particular. The urgent need for effective vaccines against Covid not only sparked high-speed innovation processes by large pharmaceutical companies, but also smaller initiatives addressed this need and leveraged alternative approaches to IP to develop and manufacture vaccines. Accordingly, we focused on five of the 26 pharma cases of the comparative mapping and explored how open science as an alternative regulatory approach can be leveraged for societal impact. Investigating vaccine R&D practices, we find that organizations recycle available knowledge, mimic vaccine designs, and shortcut parts of the approval processes to anticipate knowledge applicability after open knowledge sharing. As the urgency of the Sars-CoV-2 pandemic waned, some of these organizations shifted their focus from vaccines to other products, while continuing to engage with alternative approaches to IP. We examined one of these cases in depth to understand how it aligned its organizational identity with new strategies while maintaining its commitment to alternative approaches. The issue of alternative approaches to IP and their impact on science-based creativity could not have been more topical in recent years. We raised public awareness by blogging, speaking at practitioner conferences, and publishing a discussion paper advocating for a modular regulatory framework in times of crisis. Given that Covid-19 is unlikely to be the last pandemic, our project not only contributed explanations to current challenges but also proposed solutions to help societies prepare for future crises.