The Creative Spark: Incentivizing Innovation
In the United States, protection for intellectual property originates in the Constitution, which grants Congress the power ”[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The government only has the power to grant copyright protection so long as it incentivizes further creative production. As the reasoning goes, copyright law promotes a net gain in creative output if the intellectual property rights incentivize more creative work than they inhibit by locking down creative capital in exclusive rights.
Feist established that creativity was an essential component forcopyright protection and also clarified that economic concerns of developers were distinct from the policy concerns of the Framers when establishingcopyright.[1] Bridgeman further clarified that “creative spark” … is the sine qua non of originality” and so even if technical skill and effort were evident in the reproductions this effort did not rise to the level of protectable creative expenditure.[2] Not only must some creativity be present, but creative aspects, after having all non-copyrightable elements filtered out, must be compared to the original work to determine the amount of copying in proportion to the whole.
Congress had attempted to clarify the creativity requirement by changing the 1909 Copyright Act’s reference to “all the writings of an author” to “original works of authorship.” The requirement of originality was established in the 1800s with such landmark decisions as the Trade-Mark Cases (requiring originality for a writing to be entitled to protection) and Burrows-Giles Lithographic Co. v. Sarony (affording copyright protection only to the “original intellectual conceptions of the author”). The Court weighed author’s incentives for creative production against the need for a sufficiently free flow of information in order to promote the advancement of useful knowledge. In addition, if copyright too easily attached to expression which overlapped or was derived from prior art with little or no modification, the competing interests would have a chilling effect on creative innovation.
Technological developments and the ease with which information flows over the Internet has enabled the free exchange of ideas and allowed culture to flourish. Yet, at the same time,  the law is now being used to restrict the distribution of copyrighted works. While publication, distribution, and subsequent copying used to be constrained by the inherent limitations of physical media – quality quickly degrades with subsequent copies, and there is at least some cost to the infringer when they acquire the blank tapes or paper and copying facilities – now copyright law used used more to limit access and prevent artists from using past works as source material, or even a direct source of inspiration.
It isn’t about money, it’s about art. If economic protection incentivizes more innovation, awesome. If it is killing more creativity than it protects, well, then, it’s unconstitutional.
