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Michigan State University College of Law


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IP for Creative Upstarts

November 9-10, 2012

Intellectual Property, Information & Communications Law Program
Michigan State University College of Law
East Lansing, Michigan, USA

This conference considers how law and policy can nurture diverse creative industries—"Creative Upstarts"—in the U.S. and abroad. “Creative Upstarts” encompass a range of commercial enterprises from independent artists and producers in developed countries to emerging content industries such as Nigeria’s “Nollywood,” Jamaican dancehall, Brazilian tecnobrega music, and Chinese digital publishing. Their interests have been overlooked in recent debates on intellectual property and information policy. This conference seeks to remedy that gap.

Creative Upstarts exemplify the potential for creative industries to spearhead economic and cultural development. As digital media have lowered the entry barriers to produce and distribute content, Creative Upstarts are embracing the opportunities. Independent artists and filmmakers are bypassing record labels and studio deals in favor of alternative business models, relying on online platforms to connect with their fans and funders. Fledgling industries in developing countries are projecting their diverse voices onto the global stage. Creative Upstarts are often less constrained by the imperatives of the mass market than traditional media. Yet, as commercial enterprises, they are capable of more ambitious and sustained creative investments than amateurs who produce user-generated content. The innovative and diverse forms of expression that Creative Upstarts generate should thus be encouraged.

Recent scholarship and policy debates on intellectual property have been cast as a showdown between large commercial content producers and everybody else: Big Media vs. technology companies and consumers; Big Media’s trade interests vs. the needs of developing countries; and Big Media vs. amateur creators. As a consequence, global discussions of cultural policy have polarized between “pro” and “anti-IP” positions. On one side, Big Media seek to buttress existing intellectual property regimes in what they see as an existential battle against digital piracy. On the other side, critics dwell on the costs of intellectual property rights, including restraints on free speech and access to information. Copyright laws stand accused of entrenching Big Media oligarchs at the expense of alternative “free culture” models.

Focusing on Creative Upstarts leads to more nuanced perspectives. Creative Upstarts may be less wedded to the existing business models and better positioned to exploit alternative paradigms than traditional media companies. Yet, as commercial entities, Creative Upstarts do need to monetize their creative investments. Even developing countries, where many remain skeptical of intellectual property rights, should not overlook their domestic industries’ interests as producers and exporters of creative content. Greater access to existing intellectual property regimes could benefit them. Capacity to use the law arguably matters more than the content of the statute books. Indeed, even in markets with well-developed legal institutions, Creative Upstarts confront informational and transactional hurdles that prevent them from exploiting their intellectual property effectively—as the US Copyright’s Office’s recent proposal for small claims dispute resolution testifies.

A Creative Upstarts lens thus imposes a pragmatic focus often missing from existing debate. Rather than arguing over whether we should have “more” or “less” IP, we must examine more precisely how IP law and related policies both help and hinder Creative Upstarts. Relevant questions and considerations include:

  • To what extent are Creative Upstarts threatened by digital piracy?
  • How could existing legal regimes function more effectively? Do we need clearer rules for e-commerce? New enforcement tools? Quicker, less expensive dispute resolution? Broader exemptions or liability rules (e.g. for transformative work)?
  • How should law and policy respond to the increasingly transnational nature of creative content flows, and especially to the “borderless” realm of cyberspace?
  • Should Creative Upstarts embrace alternative business models such as crowd-funding, open licenses (Creative Commons), or peer production?
  • Do collective rights regimes serve the interests of Creative Upstarts?
  • Should “Copyright trolls” be encouraged or condemned?
  • What other IP-related obstacles inhibit commercial exploitation of Upstart creativity? How could capacity-building overcome or mitigate such obstacles?
  • How do the needs of Upstart industries vary across their developmental life cycle.

Recognizing that there are no “one size fits all” solutions, this conference seeks to take stock of case studies and innovative proposals and to clarify a menu of policy options. The conference will include a mixture of paper presentations as well as less structured roundtable discussions. The Michigan State International Law Review will publish a symposium issue comprising selected, internationally-focused conference papers.

For further inquiries, please contact Prof. Sean Pager, spager@law.msu.edu.


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