Creativity, Improvisation, and Risk: Copyright and Musical Innovation
Olufunmilayo B. Arewa, Creativity, Improvisation, and Risk: Copyright and Musical Innovation, 86 Notre Dame L. Rev. 1829 (2011).
The goals and beneficiaries of copyright frameworks have long been contested in varied contexts. Copyright is often treated as a policy tool that gives creators incentives to create new works. Incentive theories of copyright often emphasize appropriability, which enables copyright owners to ensure that they profit from their copyrighted works by exercising control over uses of, and access to, such works. Although copyright clearly imposes costs in the form of restrictions on access to copyright-protected works and inefficiencies in the form of deadweight loss, the benefits of copyright are thought by many to outweigh the costs. Copyright discussions may at least implicitly assume that copyright frameworks, and the control rights that accompany such frameworks, increase creativity. However, little is actually known about the extent to which copyright increases creativity. Further, conceptualizations of creativity within legal discussions remain vague. Copyright discussions often pay significant attention to the risks to ownership for copyright owners posed by potential users and uses of copyright protected works. However, a focus on risks to ownership may obscure the presence of other types of risk in copyright contexts. Copyright control mechanisms may also pose significant risks to creativity and innovation because they may not sufficiently acknowledge the importance of uses of existing works as a creative force. Musical innovation, for example, has come in many instances from creators taking creative risks through uses of existing materials in ways that do not fit well within dominant copyright assumptions about creativity. Creators operating within such creative paradigms may expose themselves to greater legal risks as a result of their uses of copyright protected material. Copyright discourse would benefit from greater attention to potential dangers that copyright frameworks might pose for creativity and innovation. Further, greater consideration should be given to the extent to which risks taken by creators in the creative process, evident in practices such as improvisation, may foster creativity.