According to a study conducted by the author, Orly Lobel, of this New York Times Op-Ed piece, employees who are obligated to assign to their employers the “products of their mind” are likely to perform more poorly than those who are not. Ms. Lobel noted of the study:
All of the participants were assured that they would be paid for the tasks they performed in the experiment. But the effects of giving up future control over one’s own skills and products of the mind were significant. When we asked participants to relinquish ownership of their skills, they became less focused on the problem, spent less time on the task and made twice as many errors as the unconstrained group.
In light of the study, she questions the wisdom of the common practice of having employees agree to assign to their employer all of the intellectual property rights that arise from their work, concluding:
This loss of creative fire is not only costly for individuals. In a world in which economic growth depends on innovation, we simply cannot afford such limitations on creativity.
Although the issues raised by Ms. Lobel are intriguing, what I find more intriguing is that her findings point to the answer to the long-debated question: do intellectual property rights promote creativity and innovation? Ms. Orly admits that passion and our innate creativity can motivate, but that’s not enough, she says.
Certainly, we are not driven solely by ownership. To be human is to create, and we thrive when we use our talents in productive ways. But our research shows that no one can sustain creative energies on passion alone.
There can be, at least in a legal sense, no ownership of the products of the mind in the absence of intellectual property rights. The law permits the fruits of intellectual labors to be freely taken and exploited by anyone unless doing so would infringe such a right.
I would therefore argue that this study supports the proposition that intellectual property rights are one essential ingredient to motivating the “creative fire.” Without them we would be worse off.
The sense of ownership is inherent to one’s own creations — a matter of human nature. In my practice I see in clients an intrinsic belief that they own the products of their imagination and hard work. It is what drives them to take steps to protect their intellectual property rights, even when the cost of doing so poses a risk of economic loss and might not make economic sense.
I am not sure why the desire for ownership is innate. Perhaps it is because ownership confers a sense of control or satisfaction. But I think it is pretty clear from Ms. Lobel’s study that, without the prospect of ownership, people are less interested in creating and innovating.
It seems fair to conclude also that they would be less interested in taking the significant risk of investing time and resources into a business to exploit that creativity and innovation without securing the necessary legal rights to protect it. Would they still do it? Perhaps, but certainly less often and, without the legal rights around which to structure investment, with greater difficulty.
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