Recreating Copyright: The Cognitive Process of Creation and Copyright Law

Copyright 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