2018-2019 Advances in Research

RETHINKING COPYRIGHT AND

THE CREATIVE PROCESS on research by

C H R I S TO P H E R YO O John H. Chestnut Professor of Law, Communication, and Computer & Information Science, and Director of Penn Law’s Center for Technology, Innovation & Competition

In a probing new article, University of Pennsylvania Law School professor Christopher Yoo uses an interdisciplinary approach to fundamentally reexamine modern copyright law, proposing a new theory that accounts for the significance of the creative process and suggests pathways for legal reform. In doing so, Yoo offers a corrective to the traditional “personhood theory,” which prioritizes the rights of original authors and creators by essentially treating their finished work as an extension of their persons.

The article, “Copyright and Personhood Revisited: Kant, Hegel, and the Role of Play,” forthcoming in the University of Illinois Law Review, develops Yoo’s revised personhood theory, which “regard[s] creative works as more than mere repositories of personality,” and explores “how the process of creation itself can promote selfactualization.”

The traditional personhood theory of copyright “posits that authors have such deep connections with their creations that respect for their sense of self requires giving them a degree of ongoing control over those works,” writes Yoo. The theory carries significant limitations, he argues, among them that it “values creative works only as static artifacts” and fails to recognize the role of the creative process in fostering an artist’s personality. As a result, original authors or creators of things like books, music, and works of art retain such significant control over their intellectual property that derivative use by subsequent artists is stifled.

Because “the conventional wisdom adopts a view that focuses exclusively on initial authors without taking the interests of followon authors into account,” he explains, existing copyright law permits too few works into the public domain and is insufficiently protective of rights to develop and disseminate derivative works. A revised personhood theory that recognizes how the creative process can both “develop personality and require[] access to preexisting works” addresses those shortcomings.

The article looks first at the philosophical underpinnings of the traditional personhood theory of copyright law. Perhaps surprisingly in our information age, “[a]ccording to the conventional wisdom, personhood-based theories of copyright are founded on the philosophical writings of [Immanuel] Kant and [George Wilhelm Friedrich] Hegel,” Yoo writes. However, he argues, traditional personhood theory is based upon flawed and incomplete understandings of their work. Yoo uncovers and analyzes little-read writings of both philosophers that expressly set forth their opposition

“The revised personhood theory of copyright ‘takes the interests of follow-on authors seriously by embracing how creativity often builds on the corpus of prior __ 24

works.’”