Recalibrating Australian Copyright Law to Promote Creativity

Generative artificial intelligence technologies are merely the latest challenge to copyright law's legitimacy in the 21 st century. In response, leading Australian intellectual property academics have called for copyright to be 'recalibrated' towards a pro-creativity and proinnovation vision. In service of that call, this article argues that a deeper understanding of creativity, drawing from disciplinary insights external to law, can usefully inform copyright policy that maximises creativity's impacts while minimising copyright law's costs. The article grounds this claim in three propositions: (a) encouraging creativity is regarded as a fundamental goal of Australian copyright law in the 21 st century; (b) there are inconsistent conceptualisations of creativity in Australian copyright jurisprudence; and (c) lawmakers and judges can build a more consistent, empirically-informed understanding of creativity by recourse to neurobiological understandings of the creative process, how creativity happens in community, the difference between artificial and human creativity, and how other disciplines class works as 'creative'. Initial law reform suggestions flowing from this knowledge framework include developing common law understandings of creativity for determining subsistence and broadening the scope of acceptable reuse of works to reflect communitarian understandings of creativity.