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Legal academics, our creativity and why we do it: insights from Foucault

We, as researchers and lecturers, produce new knowledge that attracts copyright, but standard understandings of intellectual property (IP) – the right as an incentive to create – do not appear to fit our circumstances. Expressed differently, the individual is at the centre of the justifications for IP law though there is little engagement, in the literature, with how the law operates on individual creators. This article addresses the problem by adopting a Foucaultian approach to explore the interaction of the (constrained) decisions of individuals and the societal policy of innovation. Foucault’s work is ideal for this endeavour as much of it focuses on the practices of the individual. For us as legal academics, and most likely for the many other innovators in society, the practices around creativity are the result of, to use Foucault’s term, the governmental rationalities that we have all been inculcated with. More specifically, the understanding of the role of “proper conduct” and the norms of behaviour provides greater insight into the previous simplistic understanding that some individuals are intrinsically motivated to create. The argument concludes with the assessment that copyright may not be important to the creativity of academics; instead, the IP right is of greater relevance to the publishers of our work – given the alternative role for copyright to facilitate the exchange of new creations.