Recreating Copyright: The Cognitive Process of Creation and Copyright Law
Omri Rachum-Twaig*
ARTICLE

  The full text of this Article may be found here.

27 Fordham Intell. Prop. Media & Ent. L.J. 287
Note by Omri Rachum-Twaig*

ABSTRACT

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opyright law reflects the intuitive understanding of creativity in the eyes of the law. This is because copyright law’s primary goal is to promote creativity. But is the legal understanding of creativity in line with cognitive psychology’s understanding of the creative process? This Article examines whether copyright law is harmonious with cognitive psychology’s understanding of creativity. Some scholars posit that theories of creativity fit well with current copyright law. In an article published in the Harvard Law Review, Joseph Fishman, a scholar studying the relationship between intellectual property and creativity, argued that, based upon some ac- counts of creativity, copyright law’s constraints on creativity actually push authors to create more original and creative works. This Article’s goal is to offer a broader assessment of creativity studies and to question whether they indeed fit with copyright law’s assumptions about creativity. This Article focuses on four main doctrines and concepts in copyright law. The first is the originality requirement in copyright law. The second is the concept of romantic authorship. The third is the idea/expression dichotomy that grants copyright protection to expressions and denies it to ideas. The fourth, which is closely related to the third, is the right to make derivative works. Copy- right law treats derivative works separately from original works and creates, to some extent, an identity between derivative works and reproductions. This attitude toward derivative works is not easy to justify. This Article examines whether the cognitive psychology of creativity is consonant with this legal doctrine and how to best apply cognitive psychology’s findings to the law. This Article is organized in the following manner: Part I discusses cognitive psychology’s relevance to the law. Part II presents the predominant theories of the process of creation and emphasizes the main characteristics of each group of theories. Part III divides the cognitive process of creation into two main stages: the stage of abstract unfocused ideation, and the stage of crystallization of a preliminary idea using previous domain-relevant knowledge and memory. Part IV uses theoretical, empirical and historical research to explain the role of prior domain-relevant knowledge and memory in the process of creation. Finally, Part V discusses how the discourse of cognitive psychology and the notions extracted from it may affect copyright law and, specifically, the right to make derivative works.

*Visiting Researcher, University of California at Berkeley School of Law; Research Fellow, Edmond J. Safra Center for Ethics, Buchmann Faculty of Law, Tel Aviv University; Research Fellow, Zvi Meitar Center for Advanced Legal Studies, Buchmann Faculty of Law, Tel Aviv University. This Article is based on a chapter from my PhD dissertation written under the supervision of Professor Michael Birnhack, Zvi Meitar Center for Advanced Legal Studies, Buchmann Faculty of Law, Tel Aviv University. This research was supported by a scholarship from the S. Horowitz Institute for Intellectual Property in Memory of Dr. Amnon Goldenberg, Buchmann Faculty of Law, Tel Aviv University. I wish to thank Michael Birnhack for his invaluable comments, suggestions, and support and for reading earlier drafts of this Article. I also wish to thank Mark Lemley, Orly Lobel, Peter Menell, Shai Lavi, and David Heyd for very helpful discussions on this Article; participants of the Edmond J. Safra Center for Ethics Turn of the Year Workshop 2015 for their comments and lead commentator Dotan Oliar for his thorough reading of a draft of this Article and for his great comments; the participants of the Sixth Annual Workshop of the Israeli Forum on IP; the participants of the Corporate Innovation and Legal Policy Seminar at the University of San Diego; and the participants of the Buchmann Faculty of Law PhD Colloquium for their thoughtful comments. Last, but definitely not least, I wish to thank Asaf Wiener and Ohad Somech for countless conversations on this Article and for always reading and discussing my drafts.