A Psychology of Intellectual Property

Jeanne C. Fromer - Fordham Law School

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The U.S. Constitution grants Congress the power to promulgate laws “[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.”1  Within the same clause and with the identical purpose of promoting innovation, Congress is authorized to grant exclusive rights in both artistic works and scientific and technological inventions.  Congress has acted to provide both forms of intellectual property protection, with patent law shielding primarily scientific and technological inventions and copyright law principally covering artistic works.  Despite the fact that Congress’s power to create patent and copyright laws is derived from the same constitutional provision, patent and copyright laws look very different on many dimensions.

I investigate the discrepancy between patent and copyright law in their protectability standards.  Patent and copyright laws each require works to surmount a certain threshold of ingenuity, so that—under a utilitarian understanding of these laws—the law grants to creators the incentive of exclusive right to their work in exchange for the creation of works from which society would benefit.  It is thought that potential creators likely would not create in the absence of intellectual property protection guarding their work from unlicensed copying.

To grant protection, patent law requires inventions to meet the high hurdle of novelty, nonobviousness, and utility.  The first requirement, novelty, requires, among other things, that “the invention was [not] known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent.”2  The second patentability requirement, nonobviousness, states that a patent “may not be obtained . . . if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.”3  Although there are different ways of understanding the third requirement of utility, it is most frequently associated with the idea that an invention must have a practical utility, meaning a specific and substantial utility.

By contrast, copyright law requires only the lower threshold of originality: It protects “original works of authorship fixed in any tangible medium of expression, now known or later developed,” including literary works, sound recordings, movies, and computer software code.4  According to the Supreme Court, a work is original so long as it “was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.”5  The requisite level of creativity “is extremely low; even a slight amount will suffice.”6  A work must merely evidence “intellectual production, . . . , thought, and conception.”7

Making sense of the discrepancy between patent and copyright law, an important but undertheorized issue, is critical to structuring intellectual property laws’ protectability standards.  Protectability is the key to whether particular works can reap the benefits of intellectual property protection and, correspondingly, whether the availability of protection will encourage the production of such works in the first instance.

Moreover, the comparison of patent and copyright law offers insight into the general role of intellectual property law and demonstrates what, if anything, patent and copyright law can teach one another.  Using the same theoretical approach to explain or challenge their dissimilarities indicates that, at their foundation, patent and copyright law have more in common than legal scholarship often appreciates.8  The ability to locate such common understandings suggests that a unified theory of intellectual property could exist, despite the manifest differences between patent and copyright law.

I propose that the distinctions in the protectability standards governing patent and copyright law primarily accord with current psychological findings on creativity, even though it is unlikely that these findings actually motivated the enactment of their different legal standards.  There are two reasons why it is essential to look to psychological understandings of creativity in order to analyze and shape intellectual property laws.  First, if the goal of patent and copyright law is to provide an incentive to produce creative works, it is worth looking to the psychological literature that illuminates the process by which scientists and artists actually create and by which individuals appreciate creative works.  Second, most legal and economic scholarship on intellectual property has not been able to explain reliably how intellectual property laws affect innovation because of limitations in conducting empirical work on this issue.  A fresh look at how scientists and artists exercise their creativity to make valuable works—the front end of the story of intellectual property—naturally gives way to an analysis of how intellectual property laws ought to be structured to provide the proper incentive to artists and scientists to employ their creativity.  This analysis diminishes the need for a full explanation of the complex back end of the story—the law’s effect on innovation.

The psychological literature on creativity suggests that the general structure of the creative process looks similar for scientists and engineers ultimately protected by patent and for artists ultimately protected by copyright.  The creative process includes as important steps both “problem finding” (formulating and constraining a problem) and “problem solving” (achieving a goal by removing any obstacles in the way).  Finding and solving a problem fits naturally in the scientific disciplines.  To some extent, it is harder to envision the problem that an artist finds and solves.  A refined understanding of art creation as problem solving, according to creativity scholars Jacob Getzels and Mihalyi Csikszentmihalyi, takes the role of the “artist . . . to be sensitive to salient life experiences, and to translate these into [artistic] products, thereby preserving as much of the impact of the experience as possible, while at the same time revealing meanings that were not perceived before the work of art was completed.”9  Finding the problem, then, is as much about deciding which artistic medium, materials, and represented objects will be used as it is about harnessing experiences and themes for artistic expression.  Viewing the problem as such in the arts establishes it as one that is typically personal and subjective.

Nonetheless, society values different steps in the creative process for scientific works and artistic works. For scientific and technological inventions, society emphasizes problem solving over problem finding, while for artistic works, it stresses problem finding over problem solving. We typically care about how well an invention grounded in scientific or engineering principles solves an identified problem, much more than the fact that someone figured out that there was a problem in the first place. Moreover, studies show that scientists and engineers who are good at problem solving are more successful on many metrics than those who are not.  By contrast, the psychological literature on creativity in the artistic domains demonstrates that the most significant predictor of original and successful art is how good the artist is at problem finding.

Additionally, while it is often acceptable for scientific and technological inventions to be more groundbreaking, it is psychologically preferable that artistic works be new, but not be too new. Research shows that our culture is typically happy to accept technological inventions that flout accepted conventions and make great leaps in “newness,”10 as with its relatively fast adoption of the telephone. This readiness is particularly present when an invention does not require its users to learn anything new or change their usage patterns. Quite different is how much newness is desired in artistic works. According to the psychologist Daniel Berlyne, how much someone likes a work of art directly relates to its arousal potential, which is a measure of its newness, complexity, surprise, unpredictability, and psychophysical characteristics (such as pitch or hue).11  But that characteristically is true only up to a point, after which there is too much arousal and the person’s feelings for the artwork turn sharply to dislike. Dean Keith Simonton’s research verifying this theory in the context of many different types of art demonstrates that “[c]reative artists must generate original ideas, yet that originality cannot go too far from some implicit or explicit baseline, such as a certain aesthetic style or tradition.”12

These two differences between scientific and artistic creativity parallel patent law’s tough standards of novelty, nonobviousness, and utility and copyright law’s more minimal originality requirement. First, scientific creativity’s focus on problem solving mirrors patent law’s protectability standards by emphasizing how well the inventor solved a particular problem.  The novelty requirement demands that if society already has possession of a particular solution to a particular problem, a subsequently developed identical solution is not creatively valuable. Nonobviousness, as a requirement, signifies that problem solutions that can be derived with a minimally creative process are not valuable. It is as if society already has those solutions available by virtue of having both its preexisting scientific and engineering knowledge and people  with ordinary skill in the art to take direct advantage of that knowledge. Finally, utility is tightly linked to the emphasis in scientific creativity on problem solving, particularly in measuring whether a solution is valuable to society. Utility requires that an invention be operable and, moreover, that it work for a specific and substantial purpose.

By comparison, for artistic creativity, the focus is on the discovery of the problem rather than its solution. This emphasis fits with copyright’s concept of originality, which requires only that the author has personally found a problem, which was then fixed as a work of art. With regard to originality’s requirement of independent creation, the emphasis is on the personal discovery of a subjective problem that artists express in their work. The emphasis on problem finding also helps demarcate more precisely what the Supreme Court meant by requiring a modicum of creativity for there to be originality. A modicum of creativity ought to mean that the resulting product came about through the creator’s passing through the stages of creativity and that there was at least some minimal problem finding of the artistic sort leading to the finished product.

The protectability standards of patent and copyright laws also correspond to the degree of newness typically desired in scientific and artistic creativity, respectively.  Patent law’s standards of novelty, nonobviousness, and utility set a high bar for protectability.  That elevated standard accords with society’s frequent willingness to adopt groundbreaking inventions.  Most pertinently, novelty and nonobviousness together give scientists and engineers incentive to shatter convention and create groundbreaking inventions.  On the contrary, copyright’s standard of originality sets the bar much lower, making it easy for artistic works to gain protection.  Psychological research concluding that individuals tend to like artistic works that are new, but not too new, coincides with this standard.  Were the threshold for copyrights set higher, artists might pour too much newness into their works, something individuals in the relevant audience would have a propensity to reject.  By setting the bar low, copyright law signals that some but not too much newness is beneficial, contrary to recent proposals by Joseph Scott Miller, Gideon Parchomovsky, and Alex Stein.13

Whether or not the developers of these laws had similar psychological principles in mind in molding the protectability standards, they are principally in accord.  These differing standards are also normatively desirable to the extent that the types of works protectable by each intellectual property regime match up with the psychological explanation of archetypical creativity for that regime.  That is, the primary goal of patent and copyright law is to stimulate creativity valuable to society in their respective spheres.  Thus, the protectability standards of patent and copyright law ought to stimulate creativity, so long as the works protected by each type of law fit the prototypical forms of creativity for that regime.  It follows then that copyright law is not well equipped to handle works whose significant contribution lies in a problem solved (such as most computer software, which is nonetheless currently copyrightable), just as patent law is not well suited to protect works whose significant contribution lies in a problem found (such as scientific theories, which patent law nonetheless might allow in limited forms, such as for some medical diagnostic patents).  Moreover, copyright law perhaps sets too low of a bar for those artistic domains in which a large degree of newness is desirable, such as jazz music. Similarly, patent law might set too high of a bar for those scientific domains in which incremental advances are appreciated (such as business methods, assuming they ought to be protected by patent law at all).


Jeanne C. Fromer is an Associate Professor at Fordham Law School.

Copyright © 2010 Northwestern University School of Law.

This Legal Workshop piece is based on the following:  Jeanne C. Fromer, A Psychology of Intellectual Property, 104 NW. U. L. REV. 1441 (2010).

  1. U.S. CONST. art. I, § 8, cl. 8.
  2. 35 U.S.C. § 102(a).
  3. Id. § 103(a).
  4. 17 U.S.C. §§ 101, 102(a).
  5. Feist Pub’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
  6. Id.
  7. Id. at 362 (internal quotation marks omitted).
  8. There is some other unified scholarship that considers patent and copyright laws under the same theoretical approach.  E.g., Rochelle Dreyfuss, A Wiseguy’s Approach to Information Products: Muscling Copyright and Patent Law into a Unified Theory of Intellectual Property, 1992 SUP. CT. REV. 195, 221–23; Dennis S. Karjala, Distinguishing Patent and Copyright Subject Matter, 35 CONN. L. REV. 439, 453–56 (2003); Clarisa Long, Information Costs in Patent and Copyright, 90 VA. L. REV. 465, 469–70, 487–89 (2004); Henry E. Smith, Intellectual Property As Property: Delineating Entitlements in Information, 116 YALE L.J. 1742 (2007).
  10. Although it would be preferable to use the word novelty or originality instead of the clumsier newness, use of the sleeker words would create too much confusion given their terminological prominence in intellectual property law.
  11. D.E. BERLYNE, AESTHETICS AND PSYCHOBIOLOGY 64–71, 81–90, 193 (1971).
  12. Dean Keith Simonton, Creativity in Personality, Developmental, and Social Psychology: Any Links with Cognitive Psychology?, in CREATIVE THOUGHT: AN INVESTIGATION OF CONCEPTUAL STRUCTURES AND PROCESSES 309, 311 (Thomas B. Ward, Steven M. Smith & Jyotsna Vaid eds., 1997).
  13. Joseph Scott Miller, Hoisting Originality, 31 CARDOZO L. REV. 451 (2009); Gideon Parchomovsky & Alex Stein, Originality, 95 VA. L. REV. 1505 (2009).

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