Thursday, August 4, 2011
Cameron J. Hutchinson, University of Alberta Faculty of Law, has published Insights from Psychology for Copyright’s Originality Doctrine. Here is the abstract.
The discipline of psychology has much to offer the law of copyright. For example, determining whether or not a work is original in a legal sense implicates, and may be enriched by, the psychology of creativity. This paper is a foray into the linkage between psychological understandings of the creativity and the legal standard of originality. While the methodologies and approaches to the psychological sub-discipline of creativity are many, certain frameworks are chosen which seem most relevant and probative to the task: psychoanalysis (specifically, Jungian psychoanalysis), experimental psychology (specifically, the cognitive science of creativity or “cognitive creativity”), and social psychology (specifically, systems theory).
In the legal sense, originality means both that a work originated from the author (what I term “authorial originality”) and that it satisfies a threshold of creativity or in Canadian legal parlance “skill and judgment” ( what I term “creative originality”). Legal assessment of the former is necessarily process-oriented i.e. was there access to and copying of a prior work under copyright, while determinations of the latter are largely product-oriented, i.e. does the resulting product embody the hallmarks or properties of skill and judgement? I argue that doctrinal emphasis on process-oriented authorial originality and product assessments of creative originality is appropriate. Within these frameworks, however, the law has much to gain from psychological insights about creativity.
Psychological literature analyzes creativity from three perspectives: the creative person and personality, the process of creativity, and creative products. Jung’s concept of archetypes of the collective unconscious sheds light on a process whereby it is possible that similar works are created independently by different authors. Furthermore, experiments in cognitive creativity convincingly document a uniform structuring of human imagination in creative product outcomes thus providing yet another account for why similar works may be created by different authors in the absence of copying. Moreover, cognitive creativity beckons the question, just how much added creativity to structured imagination should be required for copyright protection? Finally, systems theory offers an explanation for why and how a work may be determined creative based on the skills and aptitudes of the person as well as assessments by domain gatekeepers (or experts) of the resulting product. While this theory tempts one to consider the creative person (and to some extent process) in relation to her product, I argue that creative originality must remain true to product assessments of originality in copyright law. Skill and judgment, in other words, should be inferred from the product’s attributes though a heightened role for domain gatekeepers (i.e. experts) may be necessary to judge borderline cases of creative originality.
This paper will draw on examples in Preston v. 20th Century Fox in particular the Space Pets script and Ewok character created by the plaintiff in that case. To illustrate a more fulsome account of alternative conceptions of creativity along person, process and product dimensions in part 3, I will discuss this case in detail in Part 1. Part I concludes with a conventional legal analysis of copyright law doctrine and its application to the Preston case. In part 2 of the paper, I describe the psychological sub disciplines I intend to apply to copyright law’s originality doctrine, a task I undertake in Part 3.
Download the text from SSRN at the link.