Loshin (2007)

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Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Loshin (2007)
Title: Secrets Revealed: How Magicians Protect Intellectual Property Without Law
Author(s): Loshin, J.
Year: 2007
Citation: Loshin, J. (2007). Secrets Revealed: How Magicians Protect Intellectual Property Without Law. http://ssrn.com/abstract=1005564
Link(s): Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: Case study
Data Type: Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: Yes
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • Not stated
Funder(s):
  • Not stated

Abstract

Intellectual property scholars have begun to explore the curious dynamics of IP's negative spaces, areas in which IP law offers scant protection for innovators, but where innovation nevertheless seems to thrive. Such negative spaces pose a puzzle for the traditional theory of IP, which holds that IP law is necessary to create incentives for innovation.

This paper presents a study of one such negative space which has so far garnered some curiosity but little sustained attention - the world of performing magicians. This paper argues that idiosyncratic dynamics among magicians make traditional copyright, patent, and trade secret law ill-suited to protecting magicians' most valuable intellectual property. Yet, the paper further argues that the magic community has developed its own set of unique IP norms which effectively operate in law's absence. The paper details the structure of these informal norms that protect the creation, dissemination, and performance of magic tricks. The paper also discusses broader implications for IP theory, suggesting that a norm-based approach may offer a promising explanation for the puzzling persistence of some of IP's negative spaces.

Main Results of the Study

  • Copyright law does not allow for the idea or the method of operation to be copyright, which are the core of the magicians IP, thus copyright is not very effective in protecting magicians IP.
  • Magic community has developed a unique set of informal norms and sanctions for violators, which protect intellectual property in the absence of law. Hence, there is a need for intellectual property but not IP law specifically.

These norms include an exclusive magic community which protects their secrets from being misappropriated from individuals not belonging to it. If individuals belonging to it do so they are subject to punishment by the community. Thus creating an incentive to keep the secrets within this exclusive community.

  • The article also points out that there could be a solution where a trade secret protection could be allowed to magic tricks. People belonging to the community could have access to these trade secrets but anyone leaking trade secrets could face legal sanctions., which would be consistent with the societal norms within the magic community and hence efficient legal protection. This compared to the courts relying on intra-industry competition.

Policy Implications as Stated By Author

Authors suggests to extend trade secret status to magic.

Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Green-tick.png
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Green-tick.png
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Green-tick.png
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size: 1
Level of aggregation: Case study
Period of material under study: 1762-2007