A growing body of scholarship addresses intellectual property’s “negative spaces”: areas in which creation and innovation thrive without significant formal protection from intellectual property law. A number of negative space scholars have used case studies to examine the relationship between negative spaces and economic incentives for creation and innovation. But for a full understanding of intellectual property law, and particularly its negative spaces, we must go beyond utilitarianism. This means exploring negative spaces not only as they relate to incentive and efficiency considerations, but also as they relate to conceptions of intellectual property based on labor-desert, personality, and distributive justice theories.
Elizabeth Rosenblatt, Intellectual Property’s Negative Space: Beyond The Utilitarian. Florida State University Law Review, 40:441 (2013).