Copyright and the Creative Process

Mark Bartholomew, University at Buffalo School of Law

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Copyright is typically described as a mechanism for encouraging the production of creative works. On this view, copyright protection should be granted to genuinely creative works but denied to non-creative ones. Yet that is not how the law works. Instead, almost anything—from test answer sheets to instruction manuals to replicas of items in the public domain—is deemed creative and therefore eligible for copyright protection. This is the consequence of a century of copyright doctrine assuming that artistic creativity is incapable of measurement, unaffected by personal motivation, and incomprehensible to novices and experts alike. Recent neuroscientific research contradicts these assumptions. It turns out that creativity can be partially measured, that authorial intent is critical to creative production, and that expertise and creative output are highly correlated. If copyright law’s goal is truly to promote creativity, it should define that foundational concept to accord with scientific fact.