Creativity and Copyright: U.S. and Indian Perspective

Abstract

Creativity is a very important aspect of copyright, copyright promotes creativity. Modern copyright law is based upon a theory that increase more copyright protection creativity will increase by itself. This theory has been the driving force behind an economic vision that has expanded, beyond all recognition, the original law created by the Statute of Anne. In every copyrighted material there is presence of some creativeness. If the state provides protection to the authors on their creative works then they will be encouraged and the society will also be encouraged to work more creatively. The changing social context, such as the application of new media and communication technologies, new production of knowledge, and especially the democratization of creativity, has brought about continuing challenges to this regulatory framework. The greater the protection, the greater the reward; the greater the reward, the greater the incentive to create new works; and the greater the incentive to create new works, the greater the number of new works created. According to Macaulay, by increasing the financial bounty available to authors, we ultimately increase the public’s bounty of new works of authorship. In other words, copyright law promotes creativity.The moot question is that what should be the amount of creativity in a material to be copyrighted. Many US Supreme Court cases have established the tests and delivered their judgments in order to examine the amount of creativity that is sufficient for copyright protection. There are many creative materials but they are not copyrighted, although they contain creativity because they may be against morality or not under the subject matter of copyright. All these questions can only be understood by referring to the decided cases on this issue. One needs to refer to the legislation and the case laws together to understand the intent of the legislators. In some cases the courts have made creativity criteria very strict for the protection and in some cases they are moderate. The author in this article has tried to show the shift that has been made by judiciary from sweat of the brow to modicum of creativity.