Creativity and Craft

2001

The term "works of artistic craftsmanship" appears in the copyright legislation of Canada, 1 the US, 2 and the UK, 3 as a type of work for which the creator is entitled to copyright protection. Each of these countries also has legislation governing designs, and so there is some attempt to define borders in what has always been a gray area. But the question of the appropriate domain of copyright, and in particular a definition of artistic craftsmanship, remains. The issues raised in the seminal case on the subject, Hensher v. Restawile, 4 have not yet been satisfactorily resolved. This paper tries to shed some light on the artistic craftsmanship question by taking a few steps back, and asking what is the purpose of copyright. From there we can assess the various ideas that have been put forward on artistic craftsmanship, in light of what things we think should, or should not, be under copyright's umbrella. The approach I will take is economic. Economic analysis has previously been applied to copyright, 5 trademarks, 6 and moral rights, 7 all of which will have some bearing on the issue at hand. However, it should be noted that the "law and economics" tradition in the intellectual property field is usually positive; authors are seeking to show that various aspects of the law can be explained in light of the assumption that the legal system is for the most part "efficient", that is it serves to further the goals of maximizing 1

2004

SSRN Electronic Journal, 2010

Copyright laws throughout the world are copyright holder centric and present a very fragmented source to comprehend the rights of users, and in particular of consumers owning copies of copyrighted works. Although in recent years, a growing number of commentators have worked towards defining the place of users in copyright law, little attention has been devoted to the nature and justifications of copy ownership of copyrighted works. This paper applies property and copyright theory to define and justify the existence of copy ownership of copyrighted works. It seeks to carve out in clearer terms the place of copy ownership legally and normatively, to offer a counterbalance to a predominant copyright holder centric approach to copyright law. Part One of this paper lays the theoretical framework of property and copyright theory. Part Two applies the theoretical framework to define the nature of the copy of a copyrighted works, as well as its justifications. It explores the ramifications of copyright acting as a property limitation rule to copy ownership, and how copy ownership can also act as a property-limitation rule of copyright. A travers le monde, les lois sur le droit d'auteur sont centrées sur les détenteurs de ces droits et présentent donc une façon très fragmentée de concevoir les droits des utilisateurs et, plus particulièrement, des consommateurs qui possèdent des exemplaires d'oeuvres protégées par le droit d'auteur. Récemment, un nombre grandissant de commentateurs cherchent à mieux définir le statut des utilisateurs relativement au droit d'auteur, mais peu se sont penchés sur la nature et les justifications de la propriété d'exemplaires d'oeuvres protégées par le droit d'auteur. Dans cet article, l'auteure applique les théories de la propriété et du droit d'auteur pour définir et justifier le droit de propriété d'exemplaires d'oeuvres protégées par le droit d'auteur. Elle cherche à mieux comprendre la propriété d'exemplaires d'oeuvres protégées par le droit d'auteur, des points de vue juridique et normatif. Elle cherche aussi à présenter une approche différente de celle qui * B.C.L., LL.B. (McGill), LL.M. (K.U. Leuven) Ph.D (candidate) Osgoode Hall Law School, Adjunct Professor, Faculty of Law, University of Toronto. A shorter and earlier version of this paper was one of the winning entries of Canada's IP Writing Challenge award in October 2010. I thank Osgoode Hall Law School and the Social Sciences and Humanities Research Council of Canada for making this research project possible. I also thank Giuseppina D'Agostino, Lisa Austin, Abraham Drassinower, Colin Grey and Hiram Melendez-Juarbe, as well as the participants of the ATLAS Agora doctoral seminar held in June 2010 at New York University School of Law, for insightful discussions or comments on earlier drafts of this paper. All errors remain mine.

2008

Copyright, broadly defined, is a legal form of proprietary ownership of authored works, including literary, pictorial, musical, and selected other intellectual kinds. Ideally, one who is familiar with the law should know whether something they have created is protected by copyright (and to what extent), and whether some action they take will infringe a copyright. Unfortunately, this is often not the case. Rather, established copyright law gives rise to a host of problems, including legal decisions and established doctrines that are alternatively arbitrary, counterintuitive, and contradictory. My central argument is that these problems arise from a failure in copyright law to recognize the nature of its objects, authored works, and that a coherent and stable approach to copyright must be built upon such an understanding. To this end, I outline an ontology of authored works suitable for grounding both the legal and ethical domains of copyright. Centrally, I contend, a reasonable understanding of copyright depends on grasping four composite dimensions of authored works: their atomic dimension-the parts of which they are composed, and the selection and arrangement of these parts; their causal

2020

This book radically rethinks the philosophical basis of copyright in the arts. The author reflects on the ontology of art to argue that current copyright laws cannot be justified. The book begins by identifying two problems that result from current copyright laws: (1) creativity is restricted and (2) they primarily serve the interests of large corporations over those of the artists and general public. Against this background, the author presents an account of the ontology of artworks and explains what metaphysics can tell us about ownership in the arts. Next, he makes a moral argument that copyright terms should be shorter and that corporations should not own copyrights. The remaining chapters tackle questions regarding the appropriation of tokens of artworks, pattern-types and artistic elements. The result is a sweeping reinterpretation of copyright in the arts that rests on sound ontological and moral foundations. Radically Rethinking Copyright in the Arts will be of interest to scholars and advanced students working in aesthetics and philosophy of art, metaphysics, philosophy of law and intellectual property law.

2017

The Supreme Court’s copyright jurisprudence of the last 100 years has embraced the creativity trope. Spurred in part by themes associated with the story of “romantic authorship” in the 19th and 20th centuries, copyright critiques likewise ask, “Who is creative?” “How should creativity be protected (or not) and encouraged (or not)?” and “ Why protect creativity?” Policy debates and scholarship in recent years have focused on the concept of creativity in framing copyright disputes, transactions, and institutions, reinforcing the notion that these are the central copyright questions. I suggest that this focus on the creativity trope is unhelpful. I argue that digital technologies and the explosion of amateur art challenge the usefulness of creativity as the organizing principle for copyright law. I propose that knowledge should be restored as copyright’s core concept. I illustrate that argument with the art and writing of Vincent van Gogh, who is often used to illustrate the idea of th...

Intellectual Property Quarterly, 2002

UC Davis Law Review, 2007

Although much separates them musically, George Harrison and Michael Bolton share a common legal fate. Both have been held liable in copyright infringement cases in which a court articulated theories of liability based on subconscious infringement. This Article discusses how decisions in the Bolton, Harrison, and other copyright infringement cases reflect a common failing. Such decisions highlight the incomplete nature of the theories of creativity and creation processes in copyright doctrine.

University of California Davis Law Review, 2007

2009

ownership of "authored works," a class of items including literary, pictorial, musical, dramatic, and selected other intellectual kinds. 2 While copyright protection today extends to a wide range of objects, its central objects remain works of art. As a topic of both ethical and legal debate, the volume of literature dealing with copyright, in both historical and theoretical terms, is staggering, and I shall not attempt to summarize it here. However, to grasp the problem at hand requires understanding certain theoretical points upon which copyright rests. First, copyright protection does not apply to an author's ideas, nor to facts, or information per se, but only to the author's original expression of those ideas. 3 This distinction is known traditionally as the idea/expression dichotomy in copyright law. 4 Second, copyright protection does not protect any physical object per se, but rather the abstract object embodied in the physical object. 5 At the very least, it is the sort of object that (i) can be created (and, at least theoretically, destroyed); and (ii) is in principle capable of multiple instantiation. 6 The very idea of copyright implies that particular works are created by particular authors, and that these works are capable of being copied, whether in whole or in part. As such, the object protected by copyright seems to most closely align with the notion of a "type," as it is commonly understood in the standard type-token dichotomy of aesthetic theory. 7 I shall take it as such for the purposes of this paper, though other interpretations seem tenable. Although each of these points is deserving of much greater discussion, both the Lockean and constitutional bases for copyright have customarily taken them as *365 granted. I shall do likewise in my own sketch in this article and leave such further discussion to another time. II. Copyright as a Natural Right: Locke's Theory of Acquisition Typically, natural rights are conceived of as a class of conceptually and/or ethically prior rights arising from the nature of their bearers, rather than from social conventions or institutions. 8 Although natural rights theorists diverge regarding which human attributes they contend give rise to such rights, most commonly cited are such attributes of personhood as rationality, free will, and autonomy. 9 Contrasted with views on natural duties, natural rights are ordinarily conceived of as negative rights, barring interference or forbearance by outside parties. 10 Outlined in his Second Treatise of Government (1690), Locke's natural-rights approach to property is a familiar one: Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men. For this labour being the unquestionable property of the labourer, no man but he can have a right to what that is one joined to, at least where there is enough, and as good, left in common for others. 11 According to Locke, then, one has a sole right to, and property in, one's own person. 12 The common-the Earth and its inferior creatures-are owned by no particular person. 13 But by altering some element of the common through labor (by "mixing one's labor" with it), one lays claim to the result, and so gains a right in it-a claim against all others. 14 This is provided that the laborer has not, in so doing, exhausted the common of this resource. 15 *366 One view on Locke's natural right in property, then, is that of a desert. 16 That is, where one has no natural right to the common, but rather only the liberty to exploit it, one deserves a right to the fruits of his labor by virtue of having earned that property. 17 The resultant property is thus removed from the common and placed outside the reach of others' liberty, just as the man himself is outside the reach of others. 18 For example, say as a settler in a new land, unowned by anyone, I pick a plot and stake it out, marking it as my own. On Locke's theory, I do not yet have a natural right to the land, for I have done nothing to it-it remains in its natural state, and thus belongs to the common. However, upon tilling the land and sowing the fields with seed, I have "mixed my labor" with what was once common to all, and so have claimed a right in it. Moreover, in chopping down trees to build my house, I now own the wood; in building my home upon the plot of land, I should now own the land it occupies. Locke's view is enviable in its elegance.