Creativity and the Law

I just returned from a fascinating event at Notre Dame Law School, the Creativity and the Law Symposium. Organized by Professor Mark McKenna, the symposium consisted of 14 presentations, most of them by intellectual property (IP) lawyers who are looking to psychological science to learn how IP law can best foster creativity and innovation.

The first thing I noticed was that all of these legal scholars accepted an instrumental view of IP law: that the purpose of IP law (which includes patent, copyright, and trademark) is to foster maximum societal innovation, for the good of all. I didn’t hear a peep about a competing view that you might call the property view: that my ideas and creations are my personal property, and I have an inalienable right to own them, just like I own my house or my classic BMW motorcycle. That’s fine with me, because I also believe that IP law should be designed to foster the maximum creativity of all. My own studies of creativity demonstrate how each new creation is always a rather small advance on the large body of knowledge and expertise that has come before, so being overly possessive about your own ideas is always an error.

Two information conversations stick in my mind: One with Professor Greg Mandel, of Temple University, who told me that many legal scholars had begun to draw on psychological research to inform the law. This move across disciplinary lines is similar to an earlier foray into economics; economics scholarship (particularly microeconomics and behavioral economics) has been influencing the law for some time now. Greg’s paper introduced the day’s symposium, and he drew on the sort of psychological research that I review in my book Explaining Creativity.

A second was with Abraham Drassinower, of the University of Toronto. In our conversation, we reflected on this whole endeavor, asking the question: What are the real-world implications for the law, of psychological research? After all, throughout history, law has never been based on scientific research. It has always been based on normative claims about human relations, it always involves culturally specific conceptions of the individual and his or her relationship to the collective.

In my talk, I described the “Western cultural model of creativity” and ten associated beliefs that are widely assumed in the United States (but which are not supported by research). I drew on the group genius of the assembled legal scholars, and for each of the ten beliefs, I asked them to tell me how current IP law was, or was not, based on these assumptions.

I share the approach of my legal colleagues: Our goal should be to align IP law with the way that creativity and innovation actually work, as revealed by empirical study. I was delighted to participate in this stimulating event.

9 thoughts on “Creativity and the Law

  1. THANKS FOR THAT MESSAGE.
    AM KATELE, FROM NIGERIA, I HAVE SOME RESEARCH MATERIALS WHICH I WANT TO DO COPY RIGHT ON BUT I LACK THE NECESSARY KNOWLEDGE ABOUT COPYRIGHT. SECONDLY, MY WORK IS NOT PUBLISH BUT IS ON CREATIVITY AS A WAY OF TACKLE UNEMPL0YMENT WHICH I STRONGLY BELIEVE, IF GOVERNMENT OF ANY COUNTRY PAY THE IDEA IT WILL HELP TO REDUCE UNEMPLOYMENT. CAN YOU HELP ME OUT.

  2. Keith,
    I thought that this was interesting when the guy with “two” brains explained how he got the idea about music bell. He made up a plausible story to fit his understanding of what happened.
    John

  3. Fascinating! Psychologists call this “confabulation”: when a behavior occurs for automatic or subconscious reasons, and then after the fact you invent a story about how you really meant to do exactly that all along. Maier’s experiment back in 1931 with the “two string problem” is a classic example (see my book GROUP GENIUS on pages 92 and 93).

  4. This post — indicating dominance of instrumental over property view of IP among legal scholars who try to understand creativity — is one of the most hopeful I’ve read in some time (and I’ve had the post open in a browser tab for some time, hoping to eventually gather my thoughts and comment) regarding long-term improvement in policy, where long-term means generational, probably multi-generational.

    The very term “intellectual property” demonstrates just how far there is to go — the property view has lost the intellectual battle, but remains so deeply embedded that it is no real competition from a more accurate term — say intellectual protectionism, to describe current policy, or more neutral and aspirational, innovation policy.

    1. Yes, that’s a fair analysis: IP legal scholars are pretty much unified in the instrumental view rather than the property view. But the general public leans toward a property view, and that includes a lot of members of Congress, so future legislation is hard to predict.

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