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. At the same time, the mainstream of intellectual property scholarship has persistently overlooked a broad array of social science methodologies that provide both descriptive tools for constructing ethnographies of creative processes and theoretical tools for modeling them. This essay 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. These anxieties reflect first-order methodological commitments shared by rights theorists and economic theorists alike, and they tend to foreclose other, potentially more fruitful approaches to the interactions between copyright, creativity, and culture. Drawing on literatures in social and cultural theory, the essay 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. Like other cultural processes, artistic and intellectual processes are substantially and importantly shaped by the concrete particulars of expression, the material attributes of artifacts embodying copyrighted works, and the spatial distribution of cultural resources. Within a given network of social and cultural relations, an important and undertheorized determinant of creative ferment is the play, or freedom of movement, that the network affords. The essay concludes by considering the implications of this model for copyright lawmaking and policy analysis.