Creative Constraints: A new Perspective

In this post, Vasundhara Majithia, our SpicyIP Fellowship applicant, examines and puts to test the popular belief that copyright constricts creativity and provides a new perspective on whether copyright actually promotes creativity.

Creative Constraints: A new Perspective 

By Vasundhara Majithia

It is widely believed that copyright constricts creativity because it limits the rights of others to use the copyrighted information as raw material and thereby to come up with something new. While this might be true in most cases, there are quite a few exceptions. In this post I take a fresh perspective on whether copyright actually makes us more creative or not.

Scholar and writer Fishman Joseph would argue that it does. Much of the criticism of copyright is based on the assumption that one needs unrestricted freedom to reach the pinnacle of their creative potential. In his paper titled “Creating around Copyright” he argues that every creative field is bound by a certain set of rules, including art, dance and theatre. “These works are the product of a fundamental yet underappreciated fact about the creative process: it thrives best not under complete freedom, but rather under a moderate amount of restriction,” he said. The challenge lies in what one can create within these rules. He argues that the positive effects of copyright on creativity have largely been ignored. As patent protection is granted with the hope that the protected innovation will beget an even superior one, copyright protection ensures that while artists are inspired by each other’s work, their contribution to their respective arts is unique.

Creativity loves Constraints 

According to psychologists, creativity has two facets: originality and appropriateness. Originality emphasizes upon the significance of novelty created by a piece of work whereas appropriateness means that it must be of some utility to the society. The second criterion is audience driven and therefore cannot be objectively assessed. However, when it comes to originality, the old adage, “Necessity is the mother of invention” is applicable. People create new things because they need to satisfy their utility or need to derive an alternate source of benefit. Constraints fuel this need to ‘solve the problem’ and work around the restrictions to produce something useful. Creativity may be seen as a procedure of exercising free choice with respect to a range of existing constraints. Such constraints may be either positive or negative influences on the creative activity. The negative may be externally imposed or the result of unexpected phenomena, while the positive may be considered beneficial because they have either been self -imposed or have arisen from the intrinsic characteristics of the work itself.

This principle extends even beyond the arts. Google’s VP, Marissa Mayer once said, “Creativity loves constraints. People think of creativity as this sort of unbridled thing, but engineers thrive on constraints. They love to think their way out of that little box.”  This is essentially what copyright promotes: an out-of-the-box approach that stimulates innovation.

‘Steal like an Artist’

The examples of this theory are many. Austin Kleon is a US based poet who has a unique style of writing poetry. He calls it “Newspaper Blackout” which involves creating poetry by redacting newspaper articles, leaving behind only a few words. In his own words, he destroys someone else’s intellectual property to create something new. To ensure that his work stays within the boundaries of the murky fair use doctrine, he tries to transform the article such that it is either disfigured and bears no resemblance to the original, or parodies the original subject matter. According to him, the constraints imposed by copyright make his poems better because it forces him to add as much of “him” into his work as possible.

In the 1960s, DJs started layering songs with chanted vocals to create remixes. Nowadays, DJs use complex layering techniques to create their own mash-ups. The greater the transformation factor, the more their work is protected by the fair use doctrine.

Fair Use Doctrine

It is however important that these constraints are healthy and not excessive. Copyright protection must not be so rigid as to scuttle the minds of young artists and creators. Here, the boundaries of the fair use doctrine are important. It is difficult to create around copyright when it’s hard to tell where fair use ends and infringement begins. According to Article 2 of the Berne Convention, derivative works should be protected as original works and without prejudice to the copyright in the original work. Despite the fact that there is a large body of jurisprudence on fair use, the determination of whether a particular work is infringing is more or less on a case to case basis. Austin Kleon confesses that despite trying his best to work around the copyright, the final interpretation of whether or not his work constitutes infringement, shall depend on the court, if the situation arises. It is thus important that the murky boundaries of fair use be made clearer.

Term of Copyright

The term of copyright must not be unreasonably long. This too, stifles creativity, especially when copyrighted works are prominent in popular culture. By way of an example, one can see how many derivative works have sprung off the old classics. Arthur Conan Doyle and Jane Austen have inspired many filmmakers and writers to come up with their own modern adaptations of the plot line. The Famous BBC ‘Sherlock’ portrays Sherlock Holmes in 21^st century London, while keeping the soul of Doyle’s detective alive. Jane Austen’s ‘Pride and Prejudice’ has been adapted as the bestseller ‘Bridget Jones’s Diary’, which has a different plot line but with similar themes. This has only been possible because these works were in the public domain and could be used to create new works.

Conclusion

Thomas Babington Macaulay famously described copyright as “a tax on readers for the purpose of giving a bounty to writers”.  What he meant was that copyright provides authors the exclusive rights in their works which gives them a financial reward for their works by creating a market for them. Greater protection means a greater reward. This acts as an incentive to the authors to create new works and thus, the number of new works created increases. By increasing the financial benefit given to authors, we increase the benefit to society in the form of new works.

Creativity works well with a moderation of constraints. It is important to maintain the balance between protecting works to generate upstream innovation, but it is equally important not to provide excessive or unreasonable protection. The creative juices flow best when there is a right balance between freedom and constraint. Having a copyright system sends out the signal to society that society values creativity and honours the creators amongst us. It is thus important to think about how we can use copyright to our advantage. In this day and age of the internet, where information flows freely, it is important that we respect the boundaries of copyright and use it to inspire young minds to innovate their own works.