Omri Rachum-Twaig, Recreating Copyright: The Cognitive Process of Creation and Copyright Law (May 5, 2016). Fordham Intellectual Property, Media & Entertainment Law Journal, Forthcoming. Available at SSRN
Copyright law reflects the intuitive understating of creativity in the eyes of the law. This is because copyright’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 there is a match between the law and cognitive psychology research as far as creativity is concerned. Some scholars posit that theories of creativity fit well with current copyright law. For example, it has recently been argued that, based upon some accounts of creativity, copyright law’s constraints on creativity actually push authors to create more original and creative works. In contrast, this article provides a broad evaluation of creativity studies and questions whether they indeed fit with copyright law’s assumptions about creativity. While many copyright doctrines fit the cognitive understanding of creativity, the idea/expression dichotomy, which requires the same standard of review for both derivative works and reproductions, is not justified under the cognitive psychology of the creative process.