Recentering Creativity in Copyright Law Discourse

Copyright discourse often centres around creativity; as a rationale for copyright, and as a threshold for copyright to subsist in songs, books, art and other creative works. Yet creativity remains an ethereal concept: if we do not know what it means, we cannot evaluate whether copyright law is promoting it, nor can we properly understand what it means for a work to be "creative" where that is required for copyright to subsist. An emerging strand of copyright discourse seeks to respond by examining scientific insights into the cognitive process of creativity to highlight how copyright law should be reshaped to cultivate it. In this paper I develop that scholarship with an ontological analysis of copyright's relationship with creativity. Drawing on a recent meta-theory of creativity research, I demonstrate how creativity is phenomenological; that is, sociocultural and environmental factors are as important to creativity as individual cognitive processes. I then show that copyright law does not easily cohere with this phenomenological view of creativity: it has no role in some elements and is structured as to stymy others. While this analysis adds a further basis to the argument that we should not consider copyright law as a creativity-promoting legal framework, I use social contract theory to show that copyright can be regarded as having a secondary, facilitative role in the phenomenon of creativity. This analysis provides the theoretical framework for further research in three areas: (a) it challenges copyright expansionism; (b) it encourages examination of avenues to promote creativity beyond copyright law; and (c) it suggests the provision of property rights in respect of intellectual creations under copyright law should be revisited.