Private Law Theory

ABSTRACT
Intellectual property has long been the law of creation, not creators. Both the dominant utilitarian framework, as well as alternate ones like Lockean and personhood justifications, consider the creator almost exclusively by reference to their creative output. But these innovation-first, output-maximization frameworks have increased concentration among IP firms and deepened inequality in the way that IP’s economic rewards are distributed among creators. The existing frameworks simply do not have much to say about such pressing issues as authorial bargaining power, wage and economic inequality in the marketplace for creative works, and intensifying corporate concentration amongst dominant IP holders. Furthermore, the existing frameworks’ almost single-minded focus on outputs is simply no longer satisfactory in the age of artificial intelligence, which renders creative output instantaneous and near-infinite – while threatening to reshape the landscape of creative labor as we know it.

This Article advocates for a new, alternate framework, one that highlights how IP, much like labor law, has long acted as an allocator of rights in property and capital between individuals and firms, facilitating the transfer of work from creative laborers to dominant IP firms. If IP, in practice, has acted like labor law in adjudicating entitlements in and to creative labor, then IP theory, too, should do more than focus singularly on outputs—it should also address these input-based, supply-side – creative laborer – harms. To the extent that there have been strains of more creator-focused theories throughout the IP doctrine and literature, they have, variously, argued for creation as either a solitary act of genius or as collective, democratic meaning-making. This Article purposefully uses the word ‘labor’ in opposition to such Romanticized and romantic notions: it argues instead for a framework rooted in creation as wage labor, as both the means by which large IP firms extract their value and also, potentially, as capital’s most potent resisting force.

Tang, Xiyin, Intellectual Property as Labor Policy (March 16, 2024).