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In 2003, Fox News filed a lawsuit against Penguin and one of its published authors, Al Franken, for using the channel’s slogan “Fair and Balanced” in the title of their book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right (McLeod 2005, p.1). Fox News believed that Franken violated its intellectual property rights. In addition, the company believed that Franken’s book would tint their corporate reputation (McLeod 2005, p.1). Fox News tried to convince the court that Franken’s book, as well as Franken’s personality, did not meet the standards of writing quality and professionalism, pursued by Fox News (McLeod 2005, p.1). That was one of the many cases filed to U.S. and international courts regarding the issues of copyright. The latter is fairly regarded as one of the foundational pillars of today’s legal systems in the developed world. It is also the major protection against potential violations of intellectual property rights and authorship. The rationale behind the growing scope of copyright laws is straightforward: copyright is intended to protect the expression of ideas and creative inventions, by turning them into an intangible property. Copyright is believed to serve an effective incentive for creativity and innovation in societies, but, in reality, the costs of copyright laws overweight its benefits. Both authors and consumers are bound to carry the costs of copyright law and limitations on their shoulders and in no way does copyright promote creativity. It is incorrect to say that without copyright creators would not create new works. On the contrary, copyright turns creativity into a costly input, making it undesirable, problematic, and extremely burdensome for creators and their consumers.
Copyright, creativity, and the emergence of new cultural paradigms
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Understanding why copyright does or does not motivate creativity is impossible without trying to look into the changing nature of the cultural and creative contexts. Today’s cultural landscape has witnessed a dramatic shift towards the emergence of new cultural policies. These policies present a broader view of all cultural services and goods that are produced and supplied by commercial and non-profit organisations (Towse 2010, p.462). In other words, modern creators operate in a creative industries paradigm, where creativity is measured in economic, but not creative terms. The creative industries paradigm emphasises the value of human capital, knowledge and their crucial importance in driving post-modern economic growth (Towse 2010, p.462). In this cultural environment, culture moves to the background, giving place to its economic, social, and policy justifications. Innovation and creativity are no longer intangible; rather, they have an enormous economic importance, and it comes as no surprise that the number of copyright laws continues to increase.
In the cultural industries paradigm, and in light of the growing commercialisation and commodification of creativity, copyright laws exemplify a critical ingredient of countries’ economic growth, policies and strategies. Only creativity, protected by copyright laws, has the potential to boost continued economic growth (Towse 2010, p.462). Copyright laws have been around for decades and even centuries, but the integration of creative industries with arts and the subsequent digitisation of the cultural environment lead policymakers to rethink the essence of today’s copyright philosophy. On the one hand, new technologies and the digitisation of creativity demand the development of new approaches to copyright issues. On the other hand, new technologies expand innovators’ creative frontiers and make creativity easier. Unfortunately, more often copyright does not motivate but, on the contrary, impedes the development of creative ideas and their implementation. Without copyright, creating new ideas and implementing them in practice would have been much easier. This, however, does not diminish the significance of copyright laws and their contribution to the protection of intellectual property rights.
Protecting creativity: The rationale behind copyright
Understanding why copyright does not boost creativity is also impossible without taking a closer look at the nature and rationale behind copyright. According to Golvan (2007, p.7), “copyright protects the form of expression of ideas, creating an intangible property or monopoly right in such form of expression of ideas, or the way in which ideas are expressed, whether such ideas are expressed in a literary, artistic, dramatic or musical form.” Simply put, copyright is essential in protecting authors from the risks of intellectual property rights violations. In this sense, copyright is a powerful source of motivation for creativity and innovation, since authors are more likely to produce new works when they know that copyright laws protect their property rights. Without copyright, creators would be discouraged from investing their energy, time, and effort in their creative endeavors (Golvan 2007, p.7). Without sound copyright laws, creators would be unwilling to publicise their works, because anyone would be able to use them. Creators usually want their works to be protected from the risks of misuse and abuse, and copyright protection measures ensure a better balance of publicity and intellectual protection of creative works (Golvan 2007, p.7). In this context, copyright also reflects a paradigm shift from the intellectual property rights to economic exploitation of creative works and expressions (Golvan 2007, p.8).
These, however, are academic explanations of the copyright protection rationale. In reality, everything is much simpler. As mentioned earlier, creativity and innovations exemplify a potentially profitable commodity. They are claimed to be essential drivers of economic and social growth and the basis for the stability and progress in the developed world. Consequently, the rationale for copyright protection is not intellectual but economic. Most (not all) creators publish their works for profit. The stronger the copyright protection is, the higher are the chances that intellectual profits will grow continuously. Every time society members use an intellectual product, they have to pay a price, and the key goal of copyright protection is to guarantee that these profits reach the creator. Therefore, the basis for rationale behind the use of copyright protection is inherently economic and financial, but not philosophic or legal.
Even the economic benefits of copyright protection are not without costs. On the one hand, copyright laws are focused on the protection of creators, with little attention paid to their consumers. However, the latter carries the greatest burden of the economic and financial costs of copyright (McLeod, DiCola, Toomey & Thomson 2011, p.11). Customers have to pay more for paintings, music albums, technologies, and video records. If customers cannot afford or are unwilling to pay for creativity, creators immediately lose motivation to produce their works. Discouragement that comes with copyright law is, probably, one of its most significant costs and the biggest impediments to continuous creativity and innovation in society. On the other hand, copyright protection makes it difficult for the creators to use previous creative works as the foundation and building blocks for their new ideas (McLeod et al. 2011, p.11). In economic terms, copyright protection increases the costs of creativity and expression (McLeod et al. 2011, p.11). Without copyright laws, creators would be more motivated and have greater freedom of self-expression. Unfortunately, copyright converts everything that could otherwise be free into a costly endeavor (McLeod et al. 2011, p.11). Copyright discourages one of the most popular forms of creativity, which uses the existing work and improves it (McLeod et al. 2011, p.11). Copyright protection and the economic benefits it brings may be desirable for legal professionals and a few creators, but it is highly undesirable for the prevailing majority of new and emerging authors, who seek to realise themselves in the new cultural industries paradigm.
Theories of creativity: explaining the relationship between creativity and copyright
The current state of legal science does not provide any uniform definition for creativity. Meanwhile, cultural theorists have developed a number of theories explaining the meaning and implications of creativity for legal science. These theories also help to explain why copyright stifles creativity and prevents creators from developing new ideas and presenting them to the public. To begin with, Frey and Jegen (2001, p.569) explored the economic side of creativity and used crowding theory to explain the relationship between creativity, government institutions, and organisations involved in the commercial production of creative ideas. Frey and Jegen (2001) distinguish between personal and institutional creativity, with the particular emphasis made on the vitality of copyright protection in institutional environments. Based on Frey and Jegen (2001, p.569), personal creativity and artistic motivation is the same thing, whereas institutional creativity is a by-product of the complex laws and institutional arrangements imposed on artists. Complex institutional arrangements limit the space available to creators, and they cannot feel free to realise their full creative potentials. Creative ideas are governed by copyright limitations and economic / financial considerations, and artists who have intrinsic motivation to express themselves through creativity cannot realise themselves in public. As a result, it is difficult to agree that without copyright creators would not create their works. Rather, the absence of severe copyright limitations would open the gateway for talented creators who cannot afford paying for other creations.
However, there is also another side of the copyright-creativity debate. Copyright is sometimes claimed to serve as a valuable source of intrinsic motivation for artists. Towse (2010, p.465) justifies this argument in the following way. First, copyright provides a solid economic protection of creativity and intellectual property rights. From the economic viewpoint, copyright is a more reliable guarantee of future profits than the absence of any copyright laws (Towse 2010, p.465). These are extrinsic rewards that motivate creators to produce new works. Economic profits also increase creators’ intrinsic motivation, since they reflect the amount of commercial and artistic success among society members. Greater financial rewards mean greater approval of creators’ works, which carries considerable intrinsic value to authors (Towse 2010, p.465). Second, copyright laws also emphasise the moral side of creativity and intellectual rights protection, by encouraging public recognition of creators’ professionalism and status (Boyle, Nazzaro & O’Connor, 2010, p.27; Towse 2010, p.465).
In reality, all these ideas are merely assumptions that lack any empirical evidence. Towse (2010, p.466) recognises that the body of literature exploring the moral side of the copyright issue is extremely scarce. The logic behind the copyright protection is simple, but it does not work. Theoretically, copyright should secure creators from financial and intellectual risks, providing them with greater rewards and, consequently, motivating them to produce more works (Ku, Sun & Fan 2009, p.1671). The stronger the copyright protection is, the greater is the financial and intellectual motivation to engage in creative processes (Ku, Sun & Fan 2009, p.1671). Thus, theoretically, more copyright is always better for creativity. In reality, and based on the recent statistical findings, the logic behind the relationship between creativity and copyright is quite the opposite. Ku, Sun and Fan (2009, p.1672) demonstrate that “the historic long-run growth in new copyrighted works is largely a function of population.” Changes in copyright law do have some impacts on creativity, but these impacts are mostly short-term (Ku, Sun & Fan 2009, p.1672). In reality, copyright protection reveals the existing tradeoff between granting creators the right to earn profits and making their creations available to other creators and the society (McLeod et al. 2011, p.11). Again, copyright does not boost creativity but slows down the intellectual and creative progress in society.
It is wrong to say that, without copyright, creators would not produce their works. Although copyright should secure artists from financial and intellectual risks, it does not ensure equal access to material profits and does not provide all artists with equal chances to become successful. Theoretically, copyright can serve as a source of intrinsic and extrinsic motivation for creators. Practically, the relationship between copyright and creativity is moderated by a number of factors. The labor markets theory and research shed some light on how copyright influences artists’ position and earnings. Copyright earnings vary considerably across creators: those who have a superstar status have unusually high earnings, as compared to those who do not have this status (Kretschmer & Hardwick 2007, p.11). The rapid expansion of copyright law does not boost artists’ earnings (Towse 2010, p.467). On the contrary, artists are expected to invest a considerable share of their financial and intellectual resources to prove and obtain the legal right for their creation. The bureaucracy of the copyright processes in the developed countries can be hardly ignored. Additionally, artists entering the creative industries field must be ready to bargain for their intellectual property rights with the enterprise which agrees to promote their works (Towse 2010, p.468). Artists who have no resources to invest in the protection of their intellectual rights are actually discouraged from publicising their works. Contrary to the earlier assumptions, copyright cannot serve as a source of extrinsic financial rewards. Finally, even if artists have the resources needed to invest in intellectual property, they may find it difficult to negotiate the use of the earlier creative works and ideas. As a result, they will be left alone to dream about what could have made them popular, had there been no copyright law.
The problem with most theoretical assumptions about the benefits of copyright protection is that they are plain wrong. These assumptions do not reflect the real complexity of the creativity concept and its relation to copyright issues. Most models and explanations to the potential utility of copyright for creativity and economic growth are one-dimensional (Fitzgerald & Atkinson 2011, p.138). In reality, the full costs of copyright protection imposed on creators differ markedly from those involved in the ordinary economic transactions in non-creative industries (McLeod et al. 2011, p.11). While economically-minded scholars try to explain why copyright benefits creators, the latter describe the process of creativity and creation in totally different terms, as something unknowable and internal (Fitzgerald & Atkinson 2011, p.138). To a large extent, copyright cannot boost creativity simply because the two concepts are entirely incompatible. Creativity is about freedom and unconstrained self-realisation. Copyright is about defining and setting boundaries and making creative processes standardised (Ghosh 2011, p.3). It would be fair to say that the notions of copyright and creativity are in a stark, hostile conflict and cannot be combined. Without copyright, creators would have better opportunities to develop their talents and realise their ideas in public. Without copyright, creators would never stop to create. Copyright is too rational to deal with the irrationality of all creative processes. Copyright can set boundaries and limitations on the final product, artists’ creative expression (Fitzgerald & Atkinson 2011, p.138). However, it can do nothing against the rapid dissemination of creative ideas that are fundamentally separable from the ultimate product (Fitzgerald & Atkinson 2011, p.138). Copyright makes it difficult for creators to access and use previous knowledge. Copyright does not guarantee financial and intellectual profits. Copyright imposes immense costs on consumers, thus discouraging them from purchasing and enjoying the works of creativity. Today, the developed world is facing the creativity-copyright dilemma. This dilemma warrants the development of new legal and practical frameworks, aimed to reduce creative limitations and provide creators with full freedom of self-expression without infringing upon the rights of the earlier inventors.
Copyright does not promote creativity. Copyright turns creativity into a costly input, making it undesirable, problematic, and extremely burdensome for creators and their consumers. Copyright places severe limitations on creators and their consumers and, for this reason, can potentially impede post-industrial economic growth. Under copyright law, creators cannot access, use, and improve previous works. They need to invest considerable financial and intellectual resources to obtain property rights, make their ideas legal, and guarantee that these ideas bring fair profits. Present-day world is facing the copyright-creativity dilemma that warrants the development of new legal and ethical frameworks.