Intellectual Property and the Creative Industries (Formerly: Incentivising Aesthetic Progress: Intellectual Property, Art and Design)

This half option focuses on the creative industries, and asks: what sort of innovation, creative activity and ‘aesthetic progress’ do we wish to see across these industries, and to what extent can IP law help support or even encourage that activity?

Our IP analysis will focus on the law of registered and unregistered designs, and on elements of the copyright system that are relevant to creative works. Both designs law and copyright have been justified by reference to a standard market failure account: that in the absence of the exclusive rights that IP provides, free riders would be able to copy the outputs of designers and artists without bearing the costs of creation. Designs law and copyright have therefore been said to encourage the creation and dissemination of new works, because they allow creators to capture the benefits of their works. But do these rights provide meaningful incentives to create? And do they encourage the ‘right’ sort of creation? Consider the words of Perram J in the Australian case, Telstra Corporation v Phone Directories Company [2010] FCAFC 149, [100]: ‘the point of the copyright monopoly is the encouragement of new works not good works’. Is that all we want – more? Can and should the IP system play a role in guiding aesthetic progress?

This half option explores the capacity of the legal system to create a rich climate for creative production and innovation. It covers important doctrinal aspects of designs law in relation to subsistence, rights and enforcement. It also explores the overlap between designs and copyright – ie, that the same subject matter might conceivably be protected under both designs law and copyright – and the role of copyright exceptions to facilitate the creation of new works. The half option will also touch on trade mark law, including the potential for trade marks to be registered in relation to shapes and other elements which play a role in the technical functioning and/or visual appeal of a product. How has this been addressed within trade mark law, and to what extent does trade mark law support – or detract from – creative innovation?

However, this half option also recognises that IP laws are only one part of creating a rich creative climate, and indeed that IP may serve as an impediment to creative production if it does not include space for copying and imitation. This half option uses insights from a variety of disciplines, including neuroscience and behavioural economics, to asks questions about how and why creators create, and the role of norms in influencing group behaviours and expectations. It also asks questions about the politics and economics of the creative industries, including how IP law should respond to the growing use of artificial intelligence in creative practise.

Assessment is by way of a submission.