Copyright and Personhood Revisited
55 Pages Posted: 12 Oct 2012
Date Written: September 18, 2012
Personhood theory is almost invariably cited as one of the primary theoretical bases for copyright. The conventional wisdom, which typically invokes the work of Immanuel Kant and Georg Wilhelm Friedrich Hegel as its philosophical foundation, views creative works as the embodiment of their creator’s personality. This unique connection between authors and their works justifies giving authors property interests in the results of their creative efforts.
This Essay argues that the conventional wisdom is fundamentally flawed. It is inconsistent both with Kant’s and Hegel’s theories about the relationship between property and personality and with their specific writings about the unauthorized copying of books. It also adopts too narrow a vision of the ways that creativity can develop personality by focusing exclusively on the products of the creative process and ignoring the self-actualizing benefits of the creative process itself. German aesthetic theory broadens the understanding of the interactions between creativity and personality. Psychologists, aestheticians, and philosophers have underscored how originating creative works can play an important role in self-actualization. When combined with the insight creative works frequently borrow from the corpus of existing works, this insight provides a basis for this insight provides a basis for broadening fair use rights. Moreover, to the extent that works must be shared with audiences or a community of like-minded people in order to be meaningful, it arguably supports a right of dissemination.
The result is a theory that values the creative process for the process itself and not just for the artifacts it creates, takes the interests of follow-on authors seriously, and provides an affirmative theory of the public domain. The internal logic of this approach carries with it a number of limitations, specifically that any access rights be limited to uses that are noncommercial and educational and extend no farther than the amount needed to promote self-actualization.
Keywords: personality theory, self-actualization, intellectual property, jurisprudence, nonliterary and derivative works, capabilities theory, fair use, public domain, fan fiction
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By Dotan Oliar