Fresh Scholarship on Copyright

I have experienced this personally. Several times, lyrics have come to me when listening to or thinking about existing songs. Because of copyright laws, I later developed my own melodies.

http://illusionofmore.com/copyright-generative/

by DAVID NEWHOFF posted on JULY 19, 2014

For quite some time, too long perhaps, a considerable amount of academic scholarship has trended toward focus on copyright’s negative effects, or at least doubt its positive effects, without adequate analysis of the creative process itself. When viewing the market, and especially creators, many academic views I have encountered appear to look solely at finished works, how the market interacts with those works, and then to interpolate from these data the creative process that generated the works in the first place. As such, many attempts to reinvestigate copyright’s role in incentivizing production are incomplete. To quote from a new academic article that will be published in the March 2015 issue of the Harvard Law Review, “Copyright’s incentives/access debate has done a good job recognizing the risks. Yet it has all but ignored the rewards.”

At last, a legal scholar has emerged who has taken a scientific approach to examine the creative process in an effort to better understand copyright’s generative benefits. Joseph P. Fishman, Climenko Fellow & Lecturer at Harvard Law School, is the first academic to my knowledge who has attempted to express in analytical terms what I believe most artists understand intuitively — that constraint is always part of the creative process, and that copyright’s constraints very likely produce a greater diversity of works than we would see in a market without such constraints.

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The title refers to a well-established and accepted benefit of patent law that “working around” patents generates the kind of diversity of useful inventions that benefit society exactly as intended. Fishman’s thesis asks why this same working around principle is not applied to legal scholarship on the subject of copyright. Why would working around copyright not be as diversely generative as working around patents? Experientially, creators will tell you that it is. And now Mr. Fishman has applied legal theory that corresponds with that experience.

Last July, I wrote this post describing how the creative process is always about working around obstacles and that obstacles — legal, financial, physical, logistical, and internal — are often the most important catalysts to producing unanticipated, creative solutions that themselves become the signature elements that give a work its unique or masterful qualities. Shortly after publishing that piece, Fishman contacted me, still in the early stages of writing his paper. We spoke for a while, and his article does cite that October post, but what I did not know was that he would produce such a thorough and scientifically-based explanation of what artists throughout history have consistently described anecdotally.

Citing extensive psychological research into the creative process, Fishman demonstrates that there is an optimal balance to be maintained between constraint and freedom. Too much constraint fails to produce creative diversity, but so does too little constraint. In order to view the creative process as a science, Fishman rightly describes artistic work as an exercise in problem solving no different from the activities of a scientist or technologist. We tend to talk about the arts in emotional or poetic terms, but Fishman is right that the process is entirely analogous to problem identification and solution. As such, the psychological experiments to which Fishman refers throughout his article suggest that a purely “open” process free of constraints produces less creative variation than a process with the right amount and right types of constraints.