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Unpublished Paper
Creativity and Copyright
ExpressO (2008)
  • Dennis S Karjala, Arizona State University
Nearly everyone, from layperson to professional, thinks of copyright as the primary mode of legal protection for the intellectual fruits of creative artists and authors. While necessarily conceding that copyright has been extended in recent decades to cover a large number of highly mundane works, most scholars still see authorial “creativity” as the one element common to the vast array of works that now fall under the copyright umbrella. In the United States, this view has purportedly been elevated to constitutional status with the Supreme Court’s 1991 decision in Feist v. Rural Telephone Service, which stated in dictum that creativity is a necessary element in determining the copyright protectability of a given work. Some lower courts in the United States have extended the Feist reasoning to conclude that creativity is a sufficient condition for copyright protection. This paper argues that treating “creativity” as either a necessary or a sufficient condition for copyright protection is a mistake and that creativity should be thrown out of the copyright analysis altogether. “Creativity” is simply not a dimension along which we can distinguish which subject matters fall into which of the three possible modes of protection afforded by modern intellectual property law: (1) Should a work be protected under copyright? (2) Should a work be protected under patent? (3) Should a work be protected under neither patent nor copyright? If the purpose of intellectual property protection is to promote creativity, the presence of creativity is a given work does not eliminate any of the choices from consideration. Protection under patent or copyright might promote a net gain in creativity production if the patent or copyright stimulates more creative efforts than it inhibits (by tying up subject matter in exclusive rights that could otherwise be used freely by others as the basis for even newer creative works). But denying protection altogether might also promote a net gain in creativity production, by allowing others to build on the creative work in question. Moreover, even where we have decided that some protection is called for, creativity does not distinguish which subject matters should be covered by copyright and which should be relegated to the stricter rules of patent law. Computer programs are functional works of technology, and our social choice over a quarter century ago to protect computer programs under copyright rendered increasingly murky the subject-matter borderline between patent and copyright. While computer programs are creative, so is all patent subject matter, and the justification for bringing programs under copyright must be found elsewhere. Feist has further muddied the waters by sending courts on a search for “creativity” and, when found, protecting it under copyright. In the process, courts sometimes lose sight of the fundamental functionality distinction between patent and copyright subject matter. For good reason, copyright should exclude from its protective umbrella ideas, concepts, systems, procedures, and methods of operation, no matter how creative. To treat creativity as a sufficient condition for copyright protection allows copyright to arrogate subject matter that properly belongs either under patent or outside the intellectual property system altogether.
  • Copyright,
  • Creativity,
  • Feist
Publication Date
February 4, 2008
Citation Information
Dennis S Karjala. "Creativity and Copyright" ExpressO (2008)
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