70 Pages Posted: 21 Mar 2010 Last revised: 20 Sep 2014
Date Written: September 3, 2010
This Article analyzes how the strict standard for protectability in patent law - novelty, nonobviousness, and utility - looks so different from the undemanding standard of originality in copyright law, even though they derive from the same constitutional power, “To promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This Article argues that this difference accords with the psychological literature on creativity, something these laws seek to induce. This literature explores both how scientists and engineers - ultimately protected by patent - and artists - ultimately protected by copyright - go about creating their works and how individuals in the audience for these works value the different components of creativity. This Article suggests that creativity in scientific and engineering inventions is distinguished by an emphasis on problem solving and individuals’ tolerance and willingness to embrace large degrees of newness. By contrast, artistic creativity is characterized by an emphasis on problem finding and individuals’ psychological preference that artistic works be new, but not too new. These differences accord with the dissimilar protectability standards for copyright and patent. These distinctions in protectability standards are also normatively desirable, but only to the extent that the law addresses how to treat protected forms of creativity that do not fit the archetype of creativity for the relevant intellectual-property regime.
Keywords: Intellectual Property, Patent, Copyright, Psychology, Creativity, Protectability, Novelty, Nonobviousness, Utility, Originality, Science, Engineering, Invention, Art, Problem Solving, Problem Finding
JEL Classification: O31, O34, K00
Suggested Citation: Suggested Citation
Fromer, Jeanne C., A Psychology of Intellectual Property (September 3, 2010). Northwestern University Law Review, Vol. 104, p. 1441, 2010; Fordham Law Legal Studies Research Paper No. 1575843. Available at SSRN: https://ssrn.com/abstract=1575843