To Promote the Creative Process: Intellectual Property Law and the Psychology of Creativity
Mandel, Gregory N., Notre Dame Law Review
Intellectual property is the primary area through which the law seeks to motivate and regulate human creativity. The U.S. Constitution grants Congress the power "[t]o promote the Progress of Science and useful Arts," (1) and Congress responded by enacting patent and copyright law in an effort to spur technological and artistic innovation. Because innovation usually requires some form of creativity as an antecedent, intellectual property law generally should also promote, and certainly should not impede, creativity. Despite the value of facilitating creativity for intellectual property law, understanding creativity is hardly something within the competent domain of law and legal analysis. Not surprisingly, the legislative and judicial development of intellectual property law has paid remarkably little attention to modern knowledge concerning how to promote creativity. Over the past several decades, however, a wealth of psychological research has provided new insights into creativity and the creative process. This research yields valuable lessons for intellectual property law and indicates that certain areas of patent and copyright law may counterproductively hinder the very creativity that the law is designed to inspire.
Psychological research on creativity provides insight into at least three cognitive domains pertinent to the task of intellectual property law: motivation, collaboration, and convergent versus divergent thought processes. A variety of psychological research explores differences between convergent and divergent thinking, and, relatedly, between problem-finding and problem-solving creativity. Problem-finding creativity concerns identifying a new problem that no one has recognized before, while problem-solving creativity involves solving an identified problem. Research indicates that these two types of creativity can involve different cognitive processes and can lead to different types of creative achievement. Intellectual property law, however, generally treats both types of creativity identically, producing legal doctrine that does not motivate or reward either type optimally. Patent law, for example, applies the same nonobviousness requirement to both problem-finding and problem-solving innovation, even though the activities that produce such innovation can be significantly different, can result from differing motivation, and likely could best be promoted by different manners of reward.
Experimental cognitive research also reveals that intrinsic motivation is highly conducive to creative productivity, while purely extrinsic motivation tends to decrease creative function. This robust finding sounds a note of caution across intellectual property law--law's ability to promote creativity not only may be limited, but could even be detrimental to the extent it turns an artist's or inventor's internally motivated activity into one conducted primarily for the copyright or patent prize. Experiments reveal that certain types of extrinsic motivation can enhance intrinsic motivation, although the line that separates positive from negative extrinsic influences is subtle. (2) In general, extrinsic motivation that confirms the creator's competence without instituting control can synergistically enhance intrinsic motivation, while extrinsic influences that are perceived as controlling counteract intrinsic motivation, and can reduce creativity. While certain aspects of intellectual property law may successfully leverage the extrinsic motivation of a creativity prize, other aspects are more troubling and should be revised in light of these creativity studies.
Additional psychological research highlights the dynamic value of collaboration to creativity. Studies reveal that group collaboration can allow group members to build on each others' ideas in ways that synergistically enhance individual and overall creativity. (3) Similarly, various research finds that artists and scientists generate more creative outputs when exposed to a greater variety of input references, an outcome that is more likely in collaborative research. …