Creativity and Culture in Copyright Theory

Abstract

Creativity is universally agreed to be a good that copyright law should seek to promote, yet copyright scholarship and policymaking have proceeded largely on the basis of assumptions about what it actually is. This chapter argues that the study of creativity has been especially problematic for copyright scholars because it sits at the nexus of three methodological anxieties that copyright scholars experience acutely. It sketches a model of creative processes as complex, decentered, and emergent. Within this model, it is neither individual creators nor social and cultural patterns that produce artistic and intellectual culture, but rather the dynamic interactions between them. The chapter considers the implications of this model for copyright lawmaking and policy analysis. Decentering creativity, by contrast, tends to foster both a more modest conception of copyright's role in stimulating creativity and a keener appreciation of copyright's downside risks. The chapter illustrates some essential doctrinal and policy adjustments.

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