'Culture, Creativity & Copyright' by David Simon in 28
Cardozo Arts & Entertainment Law Journal (2011) comments that -
Recent literature in copyright law has attacked the traditional theory that economic incentives motivate people to create. Although the onslaught of criticism has come from different directions, it all shares a similar goal: to move copyright law in a direction that reflects actual creative processes and motivations. This Article adds to and diverts from these accounts, arguing that creativity may be a product of memes: units of culture, analogous to genes, that replicate by human imitation.
A memetic theory of creativity focuses on memes as the reference point for thinking about creativity. Under this view, the creator is a brain with limited space, where memes compete for occupancy. Like other views, memetics takes account of environmental and biological factors responsible for creativity, such as nonmonetary motivations and the creator‘s upbringing. But the memetic account of creativity is different from these theories in one important way: it uses memes to explain the driving force of culture and creativity. The idea that replicators play a role in cultural creation suggests, among other things, that copyright‘s originality requirement should be heightened; that the derivate right should be loosened; that fair use should be retained; and that moral rights should be discarded or substantially revised.
Simon concludes -
Focusing on originality, and derivative rights, fair use, and moral rights, we made several observations.
As to originality, memetics shows that the current copyrightability — a standard that trivial variations satisfy — should be discarded. Most of these variations are simple and anticipated mutations that occur through the meme‘s replication process. Protecting such trivial variation impedes the replication of numerous memes, which might be useful for creating a new work. For that reason, this Article argued that the originality standard should be heightened, but left for further study the question of the standard‘s new height.
Derivative works were then examined and found to be too restrictive. Instead of allowing nearly every use containing the original work to constitute a derivative work, a less stringent model was suggested. Because trivial and inconsequential variations are inevitable during replication, it was suggested that the author retain rights over those variations. As to significant variations, however, this Article proposed that the creator would acquire a wholly separate copyright.
We also reexamined fair use. Here we saw that fair use still served at least two valuable purposes with new originality and derivative work standards. First, fair use was still needed to account for cases of socially valuable copying. Second, fair use provided breathing space for creativity that produces derivative works that are valuable, but are not creative enough to merit independent copyright protect.
Finally, under the memetic account of creativity, we say that moral rights needed to be adjusted. Given memetic theory, a dignity-based conception of moral rights seems unjustified. Moral rights, however, still found traction based on the same theory as originality: as an instrumental mechanism to produce more creative works.
All of these implications were drawn from memetic theory. This theory offers a chance to view copyright law outside the traditional scope of individual or group creators. Memetics doesn‘t fully do away with these categories, but places them in the background. Appearing in the foreground is the meme, which causes us to reevaluate our current conception of copyrights and creativity.
