The idea that coheres the IP regime is precisely why it will never succeed---innovation is not purely economic, and failure to center community ultimately forecloses creativity.

Gilden ’20 [Andrew Gilden, Associate Professor of Law at Williamette University; “Intellectual Property’s Queer Turn”; The Oxford Handbook of Law and Humanities, chpt 30, pp. 549-564, Oxford Handbooks, Oxford Academic; 01-08-2020; https://doi.org/10.1093/oxfordhb/9780190695620.001.0001; accessed 07-11-2024] dliang

Contemporary IP scholarship also grapples with an intellectual tradition that severs creativity and human expression from the social contexts in which they operate. Much IP theory has critiqued the romantic, classically liberal notion of creativity and authorship—that fully formed individuals act upon the world and make something new out of the raw materials they discover in a proverbial state of nature.10 In this view, creators may need the law to provide some legal assurances that their labor will not be appropriated without compensation or consent, but they don’t need anything else in order to engage in their craft—creativity is purely a “personal reaction of an individual upon nature.”11 IP scholars, even those expressly embracing moral rights theories, recognize the limits of such a romantic view of creativity. Creativity is an inherently social activity; what a creator does is tightly wound up in the domain of culturally available ideas, images, and texts, so any limits on the “raw material” of creativity (whether due to cost, law, or technology) will shape the possibilities of creative expression.12 Creativity does not exist without culture, and culture is never static, and accordingly IP scholarship now almost universally recognizes that creativity and culture build upon themselves, piecing themselves together as today’s creators build o their peers and predecessors to produce tomorrow’s cultural landscape.13

Although such “postmodern” turns away from the liberal subject are often dismissed among legal theorists for being overly abstract and academic,14 both of the above scholarly shifts have been accompanied not just by theory and jargon, but also by a pronounced focus on the experiences of individuals actually living with norms of gender and sexuality (in queer theory) and creativity and copying (in IP theory). In the queer context, drag performances,15 locker rooms,16 late-night lesbian bars,17 S&M clubs,18 and many other venues have been investigated as sites where the traditional social correlations of bodies, desires, kinship, and temporality come apart and new ways of imagining their intersections come to the surface. In the IP context, scholars have studied an incredibly diverse range of creative communities: clowns,19 fashion designers,20 stand-up comedians,21 chefs,22 open source programmers,23 craft brewers,24 roller derby contestants,25 and (again!) drag queens.26 These studies eschew grand explanatory theories of creativity and undermine the notion that encouraging creativity can ever be reduced to economic incentives.27 Instead, what emerges from these studies is that creativity is shaped by the very particular norms of the social environment in which they operate. Social norms (e.g., against copying jokes) can supplement or substitute for formal IP laws in regulating innovation,28 or the sense of belonging (e.g., to an open source community) can incentivize creative activities without any promise of financial reward.29 One’s identity as a clown or chef or derby girl is contingent upon a sense of being part of a particular social group and the incorporation of such norms into the creative process. IP scholarship shows that creative identity is the product of a complex cultural landscape marked by particular social expectations about how one should or shouldn’t behave. Just as “one is not born, but rather becomes, a woman,”30 IP scholars have shown that one is not born, but rather becomes, a clown, chef, or derby girl.

These scholarly insights can have important implications for regulatory responses in each field. For law and sexuality, queer insights emphasize that sexual justice is not just about prohibiting the state and private businesses from expressly discriminating against people who already identify as lesbian, gay, bisexual, or any other sexual orientation.31 Instead, sexual identity development requires actual, achievable opportunities for individuals to interact with others, experiment with desires, and embody the categories they may ultimately embrace.32 For IP, fostering creativity is not just about providing financial incentives to get people off their sofas but about facilitating the communities in which creativity takes place. Actual creators often want recognition and belonging—which are generally dismissed by positive IP law—and need access to a robust domain of cultural resources—which IP laws often directly foreclose. The liberal self comes into the world with all the resources they need; the situated subject feeds off the opportunities available to them.33