Culture, Creativity & Copyright

95 Pages Posted: 2 Jul 2011 Last revised: 11 Jan 2012

See all articles by David A. Simon

David A. Simon

University of Kansas School of Law; Hanken School of Economics; University of Cambridge, Faculty of Law ; Harvard Law School

Date Written: May 26, 2011

Abstract

Recent literature in copyright law has attacked the traditional theory that economic incentives motivate people to create. Although the onslaught of criticism has come from different directions, it all shares a similar goal: to move copyright law in a direction that reflects actual creative processes and motivations. This Article adds to and diverts from these accounts, arguing that creativity may be a product of memes: units of culture, analogous to genes, that replicate by human imitation.

A memetic theory of creativity focuses on memes as the reference point for thinking about creativity. Under this view, the creator is a brain with limited space, where memes compete for occupancy. Like other views, memetics takes account of environmental and biological factors responsible for creativity, such as nonmonetary motivations and the creator’s upbringing. But the memetic account of creativity is different from these theories in one important way: it uses memes to explain the driving force of culture and creativity. The idea that replicators play a role in cultural creation suggests, among other things, that copyright’s originality requirement should be heightened; that the derivate right should be loosened; that fair use should be retained; and that moral rights should be discarded or substantially revised.

Suggested Citation

Simon, David A., Culture, Creativity & Copyright (May 26, 2011). Cardozo Arts & Entertainment Law Journal, Vol. 28, 2011. Available at SSRN: https://ssrn.com/abstract=1875145

David A. Simon (Contact Author)

University of Kansas School of Law ( email )

1535 W 15th Street
Room 504
Lawrence, KS 66045
United States

Hanken School of Economics ( email )

PB 287
Helsinki, Vaasa 65101
Finland

University of Cambridge, Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

Harvard Law School ( email )

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