By Varada Balachandran

The recognition of rights in intellectual property is based on the presumption that monetary incentive can drive creation and exclusivity acts as a reward for creation. Exclusivity translates into the ability to extract money out of one’s creation. It is fascinating then that in spite of the growth of law in this field, there still exist fields of creativity that are largely outside of its ambit. Such fields of creativity are said to fall within what is termed as the negative spaces of IP law.

The term ‘negative spaces’ originates in art where it refers to the area surrounding a figure that makes the figure stand out. In the intellectual property lexicon, the term refers to those areas of creation that thrive with little or no intellectual property protection. Scholars describe negative spaces as low IP equilibriums where creations seem to benefit or at least seem to suffer no harm. Much research has been undertaken on the subject and industries such as fashion designing[1], magic shows[2], stand up comedy[3], haute cuisine[4], jam bands[5], street art (graffiti)[6] etc. are now recognised as few of the negative spaces of IP law.

Negative spaces could be said to arise in situations where creators are not moved by exclusivity or a market based advantage. Negative spaces thus represent fields of creation where lack of protection proves more beneficial to the creators than exclusivity. It is interesting to note here that negative spaces have been characterised as consisting of these three elements:

  1. Public domain or the doctrinal no man’s land where there can be no infringement of IP rights.
  2. Use-based carve outs which are spaces exempted by law where no intellectual property infringement arises. For instance, fair use is one use-based carve out.
  3. IP forbearance or creator’s choice.

Of these, of particular concern to us should be the third kind. Negative spaces are born out of creators’ conscious choice to not invest in IP protection or enforcement. This leads us to the most basic of questions: why would anyone opt for lesser or no IP protection for their creation when such protection is available under law? The answer lies in the fact that negative spaces allow for what is called productive infringement. Productive infringement is an innovation that builds closely on its forbear. Creators often prefer not to sue in case somebody productively infringes on their IP rights because in all probability, they themselves have done the same at some point.

Other possible reasons could be desire for anonymity (as seen in street graffiti artists) and impracticalities involved in pursuing legal protection when the value of creation is much less than the expense required for legal remedies. Creators in negative spaces are seen to prefer a sort of community protection for their creations through what Prof. Elizabeth L Rosenblatt refers to as “IP without IP”[7].

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The subject of negative spaces is so vast that any discourse on it can run into pages. Negative spaces by defying all conventional theories of the IP law represent a beautiful anomaly.

Sources:

[1] Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 VA. L. REV. 1687, 1764 (2006)

[2] Jacob Loshin, Secrets Revealed: How Magicians Protect Intellectual Property Without Law, in LAW AND MAGIC: A COLLECTION OF ESSAYS 123 (Christine A. Corcos ed., 2010)

[3] Dotan Oliar & Christopher Sprigman, There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 VA. L. REV. 1787 (2008)

[4] Emily Cunningham, Protecting Cuisine Under the Rubric of Intellectual Property Law: Should the Law Play a Bigger Role in the Kitchen?, 9 J. HIGH TECH. L. 21 (2009)

[5]Mark F. Schultz, Fear and Norms and Rock & Roll: What Jambands Can Teach Us About Persuading People to Obey Copyright Law, 21 BERKELEY TECH. L.J. 651, 653, 676–77 (2006)

[6] Cathay Y. N. Smith, Street Art: An Analysis under U.S. Intellectual Property Law and Intellectual Property’s Negative Space Theory , 24 DePaul J. Art & Intell. Prop. 259 (2013),

Available at: http://scholarship.law.umt.edu/faculty_lawreviews/108

[7] Elizabeth L Rosenblatt, A Theory of IP’s Negative Space, COLUMBIA JOURNAL OF LAW & THE ARTS, 317 (2011)