First, a word of comment on my general view of the book. One thing I can say (this is nor a good nor a bad thing) is that it completely delivered the pre-reading expectations I had about the book. Does it deliver usable answers to the problems we face in the Tech Era (yes, I already finished the book – so I am biased about its outcome (she kills him in the end))? Well, that’s hard to tell. What it does do, is analyze the world we live in, in a way that I personally find quite novel. So… that’s a good thing… right?
Now, this being said… I would like to shed my views on a part of the book I found very interesting. Namely, the subparagraph called “the creativity paradox”. And I like to look at it from an economists’ point of view. And the somewhat startling conclusion I get to when looking at the system of copyright regulation, analysis and enforcement proclaimed by Cohen[1], is that I really question if we should value creativity that much.
Shocker, right? Well perhaps you expected no more from me, and I just don’t like to disappoint expectations. Anyhow, that’s all irrelevant. The reality is that the need to look into the creative processes to understand the true meaning of Copyright law as Cohen suggests in her subparagraph seems, in my opinion, economically inefficient.
Why? Let’s say that I produce a creative masterpiece (a bit like this wonderful post), and that some nutter claims I stole it from him (what an idea, right?). Obviously, a nutcase as she is, she sues me for damages because of a Copyright infringement. We can conceive evidencing an infringement in two ways…
1. The Cohen way.
We would not only put the two posts next to one another and see if the one is an exact copy of the other. No we would go a step further. We only would grant a copyright to my post, and by analogy, only allow an infringement claim against me, if and only if my post did not come about through a series of specific creative expressions.
2. The “classical” way
Basically, and cutting some corners here, it would be comparing the ways in which both posts expressed the underlying ideas. Nothing more. In other words, a rather formalistic approach.
What is then the point I am willing to make? Actually it is that we should prefer the formalistic approach to the hunt into the mind of the creator. Agreed, formalistic approaches often tend to be imprecise. They often tend to exclude a great many things that would otherwise not be excluded. However, in copyright… it works the other way around. Formalistic approaches as opposed to a hunt for the soul of the creator would include more protected works under the copyright protection scheme.
What it also does, this formalistic approach, is include many works of lesser quality that a creativity approach would deem not protect-worthy. That is, in my opinion, what Cohen tries to argue in her subparagraph? Namely, that we should only protect the worthy. I do not agree with that. First of all it is perhaps not up to us to qualify what works are worth it and what works aren’t. Who are we to actually judge ones labor? We can value it more or less as the case may be… but that is not a judgment made, rather a way in which the market will take care of works of lesser quality. We should not bestow upon us the godlike power of choosing between good and bad works. Claiming that we would value creativity more would imply exactly this.
Secondly, as may have appeared from my abovementioned comments… I am not in favor of a creativity approach because of its economic cost. It is clear that a system based on evidence of a state of creativity (which is internal and personal as Cohen underlines herself at page 64), is far more costly than a formalistic approach.
Combined with the possibility that market powers will soften the sharp edges of the formalistic approach, I believe we should stick with the system we have been employing for a very long time. In other words, let us use a formalistic approach of literally comparing two works and seeing if there is a difference. If there is, let us assume (refutably, of course), that some creativity has occurred. This, rather than proving a certain level of creativity.
[1] One based on the idea that we should stress more the creative processes that come about when creating a copyrightable work.
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