What do creators want? Jessica Silbey’s book, the Eureka Myth, distills the answers she received to this question over the course of interviews with more than fifty filmmakers, photographers, hardware and software engineers, business executives working with pharmaceutical, medical device, and telecommunications companies, and others. While many purport to speak for creators, Silbey’s subjects speak for themselves, through long excerpts that appear throughout the book. In this book review, I combine their insights with other historical and modern empirical accounts to carry out the thought experiment of what an intellectual property system keenly attuned to the needs of creators – knowing that creators are not the only constituent that the intellectual property system needs to care about – might look like. I find, perhaps unsurprisingly, that what creators really want is freedom, credit, and audience. While intellectual property may seem orthogonal to these aims, it can often directly support, but at other times counter, their achievement. An artist whose song becomes the basis for a national commercial can use the royalties from that to support her for years. But copyright and patents can also send the wrong message – mis-signaling through exclusive rights the message that access and use are prohibited and sending away the audiences that feed the creative spirit. In an ideal world, intellectual property would feature more ways for creators to customize the ways in which they engage with the world through their inventions and creations. It would better support sharing, licensing, and attribution, so that intellectual property can be configured to support with the evolving desires of their creators. While lawmakers wrestle with challenging policy topics like abusive patent litigation and copyright statutory damages, they should also keep in mind the needs and desires of creators as human beings, to create, to be heard, and to be recognized.
115 Mich. L. Rev. 101 (2016)