Emotions and Intellectual Property Law

Emotions constitute an integral part of the diverse approaches that we bring to bear upon our most pressing law and policy issues. This article explores the role of emotions in intellectual property, information, and technology law (IP). Like other areas of law, IP commits to, prioritizes, and even honors, reason, logic, and facts—which can result in the sidelining of the affective components of law. Yet our affective responses to legal and other phenomena influence both cognition and reason. Part I of the article provides a general overview of the field of law and emotions, pointing out how this approach to understanding law already exists, albeit still mostly incipiently, within IP. For example, our affective responses help to reinforce one of our main assumptions about IP: that legal incentives, such as copyrights and patents, motivate authors and inventors to create their respective works and inventions. In Part II, the article illustrates the operation of two specific emotions—nostalgia and hope—to demonstrate how an intentional analysis of emotions can impact IP law and policy. These two examples demonstrate that understanding how emotions undergird affect, attachment, attention, attraction, and repulsion for all areas of IP knowledge production is an essential first step to addressing our currently pervasive knowledge asymmetries, biases, and omissions. Put negatively, if we continue to ignore or minimize emotions in IP, we also will continue to risk an incomplete conceptual configuration of IP, at the cost of thwarting the primary policy goals of this increasingly crucial area of law