Professor Jessica Silbey believes that the law of patents, copyright, and trademark ought to be based in reality, not on assumptions. Her research into how and why artists and inventors innovate and create will inform the future of IP law, the very future her students are headed toward.

We "know" that patents, copyrights, and trademarks—that is, intellectual property (IP)—boost the economy. We "know" that they do so by incentivizing creativity and innovation. There's just one problem: if we ask for the data proving it, we'll discover…there isn't much.

"It's embarrassing how much we say without knowing whether there are facts to support it," says Professor Silbey. 

Silbey teaches constitutional law and the law of copyright and trademark. She is a pioneer in the emerging field of empirical IP law research. She's writing a book, due out this year, that explores the relevance of IP law to the work and livelihoods of artists, musicians, writers, and inventors. The point of her work is to see, using actual data, where IP law works, where it doesn't, and how it might be improved.

"There's a whole cadre of great, young scholars who are beginning to do empirical work," Silbey says. "I want to be part of the crowd that is creating this data set so that we can have evidence-based law-making."

Here's a flavor for what she's finding. The novelists she interviewed said that copyright did not spur their creativity, and in fact had nothing to do with why they write. Copyright, moreover, provided them little sustained economic benefit until much later in life, and failed to protect them against, for example, plagiarism. 

Bottom line: at least with respect to novelists, and contrary to conventional IP wisdom, copyright does not encourage writers to produce novels, and it does not offer them the sorts of protections they most value.

Silbey wants not only to reform IP law itself. She also wants to reform the profession, to make it accessible to small-time musicians, artists, and entrepreneurs. 

"I would really like to figure out a way that we can teach students in law school and train them so they can serve this population quickly and excellently," she says. "Intellectual property is something that is seen as a rich-man's game, and it is not. It is an important, everyday issue that is at the foundation of so much of what is beautiful and fun about our world."