Cohen, JulieCreativity and Culture in Copyright Theory 2007
University of California Davis Law Review 1151

Summary (brief/rough):

  • Copyright theorists can generally be divided into two camps: rights theorist and economic theories (p1155) (one reason for the primacy of these two theories is that they are indispensable prerequisites for constructing overarching normative frameworks – p1156)
  • Although they argue different things, they both start from the same approach = abstract first principles (mostly associated with liberal political theory)
  • Copyright theorists approach questions of copyright scope etc. from a level of abstraction – partly because this is what allows them to construct arguments that fit within their theoretical framework, partly due to law's need for certainty and rigidity, and partly because they are afraid of making value judgments about creativity and different kinds of creative products (p1162)
  • One of these points of abstraction is the notion that idea and expression are separate – this enables theorists to draw a sharp line between what should be protected (“expression”) and what should not (“ideas”). Talk about innovation, creativity and “the public domain” usually revolve around the value of “the free flow of ideas”. The doctrine of merger comes from this premise and seeks to rectify gaps in the analysis, where expression is so tied to idea that it should not be protected. (pp1170-1173) “Identification of “expression” divorced from animating “ideas” as the appropriate subject of ownership leads to another process or abstraction, which identifies the “work” as the locus in which rights reside.” (p1173). Abstraction leads toward ever more complete control of things embodying works (p1174)
  • But this is a false distinction to draw, as are the other distinctions in copyright theory, such as creator/user and author/improver dichotomies. Also, the notion of the “public domain” is problematic.
  • In fact, all these notions are inseparable. They are linked and flow in and around each other. Cohen draws some influence from postmodernism and the idea of many and variable realities and factors. Postmodernism provides a more robust and nuanced account of the nature and development of knowledge than (traditional) liberal political philosophy does (p1165). “A postmodern approach to knowledge demands careful attention to social, cultural and legal mechanisms for evaluating, rewarding and internalizing progress” (p1168)
  • “The abstractions-based model of cultural production tends to marginalize more concrete questions about how people use culture and produce knowledge, about the conditions that lead to creative experimentation, and about the conditions that predispose audiences to welcome such experimentation. The result is a doctrinal framework that obstructs careful examination of creative processes, and makes grappling with difficult policy choices in copyright more difficult than it ought to be.” (pp1175-6)
  • Cohen takes on, instead, Nussbaum and Sen's capabilities approach, which aims for the fulfilment of human freedom, where freedom is defined in terms of capabilities for human flourishing. Freedom, therefore, is not just a function of the absence of restraint but also depends on access to resources and the availability of a sufficient variety of real opportunities (p1159). There is much work that has already been conducted in the social sciences that examines creativity and creative processes. Legal analysis should consider these studies and theories too, not just legal and economic theories.
  • Situated users – consume cultural products, but they also appropriate cultural products to communicate with one another, for self-development and for creative play. Cultural activities of situated users take place within a web of semantic and material entitlements. (p1179) Creativity is located in the process of working through culture alongside others who are already similarly engaged. The process of working through culture is closely tied not only to semantic links between content but also to the spatial distribution and material forms of cultural resources. (p1180)
  • “Regardless of artistic field or genre, creative outputs do not simply spring full-blown from the minds of their creators but are arrived at through processes that are iterative, experimental and hands-on.” E.g. reworking of texts; jazz improvisation. (p1182). This raises questions for copyright scholars to consider – intellectual culture is more usefully understood not as a set of products, but rather as a set of interconnected, relational networks of actors, resources and creative practices (p1183)
  • Copyright scholars assume that copyright law is centrally important in stimulating a high level of creativity. They devalue the role of context in shaping culture. This fuels romantic author narratives and justifies drawing distinctions between authors on the one hand and consumers, imitators and improvers on the other. “Those distinctions dominate the current landscape of copyright law; they undergird broad rights to control copies, public renderings and derivations of copyrighted works and expansive readings of the rules that create liability for technology providers.” (pp1192-3)
  • Decentering creativity challenges the assumption about copyright's influence on creativity in two ways – (1) it suggests a much more modest conception of the role that copyright plays in stimulating creative processes and practices (although copyright does play an important role in organising cultural production); (2) it provides a firmer foundation for arguments about the systemic harms that a regime of copyright can produce. (p1193) “Within this framework, a regime of copyright that aims to promote cultural progress must be assessed based on its effects on creative practice by situated users, and on the extent to which it renders elements of the cultural landscape more or less accessible. And within this framework, those who advocate more limited copyright can be “for” rather than “against” creativity.” (p1194)
  • “Creativity requires breathing room, and thrives on play in the system of culture. This suggests powerfully that copyright entitlements should be narrow and clearly incomplete, and that the scope for individual experimentation should be generous. It suggests, as well, that courts deciding infringement cases should not attempt to close gaps in the structure of copyright out of misplaced sympathy to current rightsholders, but instead should exercise self-restraint.” (p1197)….”Simply put, overly broad copyright exacerbates the structural effects of unequal access to cultural resources by placing additional obstacles in the path to cultural participation…In removing obstacles to cultural participation, narrower copyright broadens and deepens a society's capacity for cultural progress.” (p1198)…”The result of such a process would be a copyright regime of more modest reach but ultimately more expansive ambition.” (p1205)

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