Abstract
Very early on, the heralds of the “creative industries” emphasised on the imperative of a legal framework based on strong intellectual property to ensure their growth. In a context of intense international competition, intellectual property rights appeared to allow guaranteeing the “singularity” of local products and thus extricate them from untenable price-based competition. However, the excessive bolstering of those rights is likely to modify how they operate and, therefore, make them an obstacle to the development of a “creative economy”.
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Notes
- 1.
According to the Creative Industries Task Force, the scope of the “creative industries” is thus made up of “activities which have their origin in individual creativity, skill and talent and which have a potential for wealth and job creation through the generation and exploitation of intellectual property” (CITF/DCMS 1998: 3).
- 2.
For example, it is on this “sensitive” value (i.e. fundamentally linked to sensory perception) that deli food markets are built.
- 3.
On this topic, refer, for instance, to O’Connor (2007).
- 4.
We should further point out that various authors insist on the fact that products from the creative industries share a common consumption characteristic: indeed, these products are generally “experience goods” (Nelson 1970). We also come across the idea that we are faced with an “experience economy” (Hartley 2013): the value of the products proposed can only be appraised by the consumer after the fact, i.e. in the very act of consumption; but this characteristic is fundamentally linked to their symbolic/sensitive dimension (Flew 2012; Hartley 2013).
- 5.
More especially, the brands, the design and the literary and artistic property, see infra.
- 6.
“Originality” is an indispensable condition for the legal existence of a “work of the intellect” in the legislation of all member states of the World Intellectual Property Organization (WIPO). Although considerable differences can be found in the doctrines of those countries, originality is generally assessed in terms of “newness”, to which we can add the manifestation of the “author’s mark” and the author’s awareness in making a work of art through his very activity (in the continental European tradition), or else through the manifestation of a “minimal degree of creativity” found in the object (in the tradition of copyright and Common Law).
- 7.
We are borrowing this concept from Heinich (1998) in order to characterise the assertion of uniqueness and the non-substitutable nature of the products under consideration.
- 8.
In economic sciences, those two characteristics were laid down as the result of by Arrow’s (1962) analysis of the economic properties or information (although he does not use these terms himself). Non-rivalry characterises the fact that an individual’s consumption of a piece of information (or an idea) does not prevent another individual from consuming that same piece of information; non-excludability refers to the fact that it is impossible (or extremely complicated) to prevent the consumption of a piece of information (or the idea) from such time as it becomes public.
- 9.
The Organisation for Economic Co-operation and Development (OECD) estimates that the global market in tangible fake goods, which accounted for more than 250 billion dollars in 2007, increased by 250% over the period 2001–2007; the market in pirated digital goods, on the other hand, is not valued for want of reliable indicators (OECD 2009a, b). We should point out, however, that these figures should be taken with a pinch of salt in that they usually come from firms working for the industries affected by counterfeiting and not from independent observatories.
- 10.
Agreements on those aspects of intellectual property rights, that impinge upon trade from the World Trade Organization drafted in 1994, came into force in the following year.
- 11.
World Intellectual Property Organization that administrates 24 international treaties, the majority of which have been ratified and/or revised over the last 30 years.
- 12.
Anti-Counterfeiting Trade Agreement on which multilateral negotiations began in 2007 and currently applies to eight countries, including the United States and Canada.
- 13.
For example, in the United States in 2009, there were no less than 52 amendments to the general revision of the 1976 law on copyright whereas only 36 amendments were enacted in the general revision of the 1909 law (more than a third of which between 1965 and 1974).
- 14.
This supervisory mission has been conducted by international interprofessional associations (but generally driven by American industrial concerns), the most active of which, as far as the “creative sector” is concerned, are the International Intellectual Property Alliance (IIPA), the Business Software Agency (BSA), the Motion Picture Association (MPA), the International Federation of the Phonographic Industry (IFPI) and the Business Action to Stop Counterfeiting and Piracy (BASCAP).
- 15.
We can add, for example intellectual property rights—artistic and trademark property—to contractual clauses that are very stringent for the consumer.
- 16.
By opposing or complementing a “substance value”, i.e. a value that is considered to reside solely in the “permanent” characteristics of the object (Orléan 2011).
- 17.
Joseph Lampel defines “attached resources” as “resources that cannot be separated from the identity of the actors that hold them” (2011: 335). He defines “alienable resources” as resources that are “controlled but not embedded in the identity of the actor in such a way as to prevent transfer of control or ownership to others” (Ibid.).
- 18.
We should emphasise here that the concept of “singularity” cannot be reduced to the concept of “monopoly” owing to the symbolic, signifying and sensitive dimension attached to the object under consideration (its “indivisible multidimensionality” (Karpik 2007) whence the pre-eminence of the attention given here to artistic property rights, trademark rights and design rights and the lesser consideration given to patent law.
- 19.
“Exclusivism” is a founding attribute of property law (Munzer 2001).
- 20.
- 21.
On the “authenticity” guaranteed by the brand and/or signature and the impulse to buy on the art markets, see, for example Edelman and Heinich (2002).
- 22.
On the criticism of “substance value” in economics and its replacement by value originating not in the object or relationship of the individual to the object but in the social relations produced by the object, see Orléan (2011); on the anthropological criticism of the dominant economic value model, see Hénaff (2002).
- 23.
For a brief summary, see Bullich (2013).
- 24.
For example, the 1998 amendment increasing the duration of copyright in the United States was given the nickname “Mickey Mouse Protection Act”, lobbying from the Disney Group having been so insistent.
- 25.
Among them, we find the Nobel Prize winners, K. Arrow, R. Coase and M. Friedman, who join in with their colleagues in protesting against the extension of the duration of copyright.
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Bullich, V. (2020). Intellectual Property Rights and the Production of Value in a “Creative Economy”. In: Kiriya, I., Kompatsiaris, P., Mylonas, Y. (eds) The Industrialization of Creativity and Its Limits. Science, Technology and Innovation Studies. Springer, Cham. https://doi.org/10.1007/978-3-030-53164-5_12
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