Bumping Around In Culture: Creativity, Spontaneity, and Physicality in Copyright Policy

Intellectual Property and Copyright and Trademark

Article Snapshot


Molly S. Van Houweling


UC Davis Law Review, Vol. 40, pg. 1253, 2007


This article comments on creativity and copyright law and stresses the need to understand creative processes.

Policy Relevance

Copyright law and incentives to create versus the value of a vibrant public domain can only be properly balanced with a proper understanding of the creative process. A good understanding of the creative process will help copyright law tackle new controversies.

Main Points

  • The need to understand the creative process is put forth in Creativity and Culture in Copyright Theory. This notion is integral to truly understanding copyright law because copyright law revolves around creativity.
  • The traditional modes of understanding creativity in copyright law have not come up with an affirmative theory of creativity. Other disciplines, outside law, have thought about creativity more diversely.
  • Creativity comes from “bumping around in culture” and not knowing beforehand what will be created, or creativity can be said to result from “working through culture.”

    • “Working through culture” involves physical interaction — “running across things, absorbing them, and manipulating them.”
  • This theory of creativity means that copyright law may need to allow for more interaction and involvement with specific cultural artifacts rather than simply abstract ideas.

    • The market for existing works in copyright law may not be enough to overcome the limits copyright law places on creativity because the market necessitates forethought and valuation prior to creation, which are qualities that this theory of creativity does not allow for.
  • The “bumping around in culture” creative process theory can be applied to new issues, such as the Google Book Search project. The ability to bump around millions of digitized books would be a boon, but the digitized books would lack the physical nature of the creative process that is a key component.
  • Increased understanding of the creative process will help copyright law protect creation and put forth sound public policy as new issues, such as the Google Book Search project, raise traditional copyright concerns.

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