It is an article of faith for Intellectual Property (IP) lawyers that IP protection promotes creativity and is necessary for strong cultural industries. However, two recent experiences have caused me to pause and reflect on these sacrosanct dictums. Might there be circumstances where IP protection frustrates or at least is not required for creativity?

In the first instance, I was discussing a recent webcast in which I was interviewed at the National Centre in Ottawa. At one point in the interview I made the point that two of Mozart's best loved opera pieces - the overture to the Marriage of Figaro and the aria Marten aller Altyn from the Abduction from the Seraglio were based on works by his "rival" Antonio Salieri. A lawyer I know made the point that such borrowing would today be copyright infringement. He speculated that these two superb works would not have been written if there had been copyright in the 1780s. The law would have made them infringing works.

The second instance was another webcast, this time by Johanna Blakley. She looks at IP protection in the fashion industry, noting that there is no protection for designs, just for trade marks. She argues persuasively that the freedom to copy designs promotes, rather than threatens, the clothing industry. Fashion trends can be created and all segments of the market can be served.

These instances do not mean that there is no truth to the dictums that underlie IP protection. IP rights are important to many industries to ensure that those creating and innovating can earn an appropriate reward for their efforts. But they do suggest that these dictums are not universally applicable. We need as a society to look more carefully at each industry to determine if full IP protection is best to promote creativity and growth.

It is both ironic and instructive that lawyers do not assert copyright over legal agreements. Such documents have developed over time benefiting from the contributions of many lawyers over the years.

Perhaps law makers ought to look to these exceptions and be more open to shaping IP protection to different industries and different circumstances so that the right balance can be achieved between rewarding innovation and creativity and giving people room to improve and enhance that creativity to the benefit of us all.

C. Ian Kyer is counsel at Fasken Martineau and the chair of the board of directors for GRAND. His blog takes readers on a tour of legal issues and perspectives as applied to the fascinating world of graphics, animation and new media in Canada.