Academic journal article Notre Dame Law Review

The Western Cultural Model of Creativity: Its Influence on Intellectual Property Law

Academic journal article Notre Dame Law Review

The Western Cultural Model of Creativity: Its Influence on Intellectual Property Law

Article excerpt

INTRODUCTION

In this Article, I examine the Western cultural model of creativity, a set of ten implicit beliefs about creativity that members of Western and European cultures often hold. The Article is organized into ten Parts, each corresponding to one of these ten beliefs. In each of these Parts, I critically examine the belief by reference to scientific research on creativity--conducted primarily by psychologists, but also by historians and sociologists. This research reveals that many of the ten beliefs are false, or at least highly misleading. In each case, I draw on the research to propose an alternative view of creativity. In several cases, the scientifically grounded view of creativity is diametrically opposed to the Western cultural model.

Following each of these discussions of the research, in each of the ten sections I then discuss implications for intellectual property law. I conclude that several aspects of our current intellectual property regime are grounded in these ten beliefs. For those beliefs that are not consistent with scientific research on creativity, this is problematic, because if IP law is not aligned with the empirical processes of creativity, then it will be less effective at its goal: "To promote the Progress of Science and useful Arts." (1) I discuss the implications and possible alternative IP regimes that would more closely align with scientific studies of creativity and innovation, thus more effectively promoting creativity and innovation.

When I presented this talk to the "Creativity and the Law" symposium, I asked each participant to respond by answering the following questions:

Is the current IP regime grounded in this belief?. If so, how?

If scientific research shows the belief to be false, then what alternative IP regimes would better align with scientific research?

I asked the participants to write down answers to these questions during my talk, and I collected these handwritten notes afterward. The participants' comments are reproduced and attributed below. These participants agree that much of our current intellectual property regime is grounded in these ten beliefs. I conclude by discussing possible alternative IP regimes that would more closely align with the true nature of creativity and innovation.

I. THE WESTERN CULTURAL MODEL or CREATIVITY

Beliefs about creativity vary from country to country. Most people in the United States--and in the Western world more generally--share a set of implicit assumptions about creativity. Anthropologists refer to an integrated framework of assumptions as a cultural model. (2) A cultural model is "a cognitive schema that is intersubjectively shared by a social group." (3) The theory of cultural models is built on theories of cognitive schemas; these theories were developed by cognitive scientists in the 1970s and 1980s. A cognitive schema is an innate and learned mental structure that organizes related pieces of knowledge. (4) Beginning in the late 1970s, cognitive anthropologists began to build on schema theory as they elaborated a cognitively grounded approach to culture, in which culture is seen as residing in part within the heads of its members. These scholars proposed that cultural models were cognitive schemas that are intersubjectively shared among members of a social group. (5)

In this Article, I identify ten features of the Western cultural model that I call creativity beliefs. There is some overlap across cultures, but also many differences. The Western cultural model is rooted in a broader set of cultural assumptions known as individualism. (6) Collectivist cultures are those in which people are integrated into strong, loyal groups. These cultures value group goals and outcomes over the individual. The self is defined by reference to the group and to one's position in it; there is no firm separation between individual and group. In individualist cultures, in contrast, the ties between individuals are looser. …

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