Creativity Springs From Careful Copying (Part 2)

William Patry | Bloomberg | December 27, 2011

Record companies, book publishers, movie studios and other media corporations are caught up in efforts to equate all copying of their works with theft. In fact, if we genuinely want to promote creativity, we must encourage copying. The idea that people copy because they lack creativity is powerfully harmful, and it runs counter to the history of copyright.

For the first 300 years that copyright laws existed, the right to prevent unauthorized copying was determined not by property rules, but by reference to whether the defendant’s work added new insights -- whether the copier, too, was creating something. Verbatim copying, mere paraphrasing or qualitative copying of the heart of the work were all prohibited, because such copying did not provide new insights or evidence any creativity, but only acted as a substitute for the original. Yet there was considerable leeway for other kinds of unauthorized copying.

Regrettably, we have undergone a change in policy that works against the creative process. The current trend is toward finding that even minimal uses infringe copyright law. Instead of encouraging new works, we are fast adopting a property-based theory of absolute ownership...To deny people the right to copy, intimately, from others, is to deny the essence of what it is to be a creative person.

The most damaging consequence of the movement to turn culture into private property is the largely successful change in attitude toward creativity and copying. Creative people are supposedly those who do not copy or imitate others; copying is supposedly theft.
In truth, creative people must copy and must imitate others. Our copyright laws should be changed to reflect this reality.