U.C. Davis Law Review, Vol. 44, p. 283, 2010
79 Pages Posted: 13 Apr 2010 Last revised: 24 Nov 2010
Date Written: May 18, 2010
An ongoing debate at the heart of intellectual property law pits those who argue for efficiency objectives versus those who seek to advance other social goals. Proponents of the former model focus on the need for intellectual property regimes to provide incentives, while proponents of the latter aspire to protect natural rights or secure an environment for greater human flourishing. Typically lost to both observers and participants in these disputes is that most conceptions of intellectual property actually share a common ambition - the desire to promote creativity. Promoting creativity serves both the incentive goals of intellectual property and advances more holistic personal, cultural, and social interests.
Psychological, neurobiological, and cultural research now provide a wealth of information on how to actually promote creativity. Unfortunately, intellectual property law has failed to recognize these insights, instead remaining moored in doctrine derived from archaic stereotypes about creativity and the creative process. We see these distorting stereotypes, for example, in the law concerning joint authors and joint inventors. Based on historical, textual, temporal, and comparative law evidence, this article argues that joint creator law has evolved, at least in part, not from its traditionally identified sources, but from commonly held stereotypes about left-brain scientists versus right-brain artists. Modern research shows that these stereotypes of creativity are not only false, but that as a result, joint creator law specifically, and intellectual property law more generally, likely do not promote progress to the extent feasible, hindering both creativity and valuable collaboration in important contexts. Leveraging these interdisciplinary teachings yields valuable insight for how to revise patent and copyright law to better serve their creative objectives.
Keywords: joint inventor, joint author, creativity, intellectual property law, artist, scientist
JEL Classification: O34
Suggested Citation: Suggested Citation
Mandel, Gregory N., Left-Brain versus Right-Brain: Competing Conceptions of Creativity in Intellectual Property Law (May 18, 2010). U.C. Davis Law Review, Vol. 44, p. 283, 2010; Temple University Legal Studies Research Paper No. 2010-8. Available at SSRN: https://ssrn.com/abstract=1588214
By Thomas Field
By Orin Kerr
By Peter Dicola