COPYRIGHT AND THE BRAIN.

• Date: 01 October 2020
• Author: Bartholomew, Mark

TABLE OF CONTENTS INTRODUCTION I. UNDERSTANDING AUDIENCES A. The Role of the Audience in Copyright Law B. Distinguishing Between Audiences Through Neuroscience II. UNDERSTANDING AESTHETICS A. Moving From Empirical Investigation to Unquantifiable Intuition 1. Daly v. Palmer and the Turn to Aesthetic Experience 2. Pleasure and the Inherent Subjectivity of Aesthetic Experience 3. Time B. The Science of How Aesthetic Decisions Are Made 1. Searching for Objective Measures 2. Immediacy C. Concerns and Limitations III. IS NEUROAESTHETICS GOOD FOR COPYRIGHT? A. The Normative Implications of a Neuroaesthetic Approach to Infringement 1. Copyright Law and the Two Cultures 2. Avoiding Aesthetics B. The Right Way to Incorporate Neuroscience into Copyright Law. 1. Different Aesthetic Approaches for Different Creative Media 2. Surveying Audience Difference 3. Debiasing the Trier of Fact CONCLUSION INTRODUCTION

Nobody likes the current test for copyright infringement. A court or jury determining whether illegal copying occurred must assess whether the plaintiffs and defendant's works are "substantially similar" from the vantage point of the "ordinary observer." (1) A frequent punching bag for intellectual property scholars, the substantial similarity test has been described as "mak[ing] no sense," (2) "notoriously confusing and confused," (3) and "a virtual black hole in copyright jurisprudence." (4)

Judges feel no better about the test. Early on, a court complained of the ordinary observer analysis's "artificial and disappointingly inaccurate application." (5) Another prophesized that the test would prevent judges and juries from making "an intelligible and intellectual decision" on the question of infringement. (6) The passage of time did not make things any better. One court of appeals deemed the test "of doubtful value" given its interplay with other parts of copyright law. (7) Or, as another court opined, the "essential question" of how to compare two works for purposes of substantial similarity has not been answered "[a]fter 200 years of wrestling with copyright questions, [and] it is unlikely that courts will come up with the answer any time soon, if indeed there is 'an' answer, which we doubt." (8) To a large degree, these complaints reflect a larger skepticism of the ability of one person to comprehend the aesthetic experience of another. The substantial similarity test, also referred to as the "audience test," (9) requires art to be appreciated from the perspective of its intended audience. As formulated by the federal courts, "the essence of the audience test is its focus on viewers' spontaneous reaction" to the infringing work. (10) These courts assume that human reactions to art are inherently subjective and, therefore, not susceptible to objective analysis or outside expertise.

As a result, decisionmaking in copyright cases remains particularly opaque as courts largely abdicate any role in policing what can be relied on when comparing the plaintiffs and the defendant's works. (11) This has negative consequences, including making infringement disputes unpredictable and difficult to resolve before trial. (12) Rather than base copyright infringement on a phenomenon incapable of measurement, some law professors, including the author of the most-cited treatise on copyright law, call for the audience test's wholesale abandonment. (13)

Maybe there is a way to rehabilitate copyright infringement doctrine without junking the audience test. Brain science offers the potential for a much richer portrait of the aesthetic experience. "Neuroaesthetics is the study of the neural processes that underlie aesthetic behavior." (14) Neuroscientists have identified several regions and processes in the brain central to appreciating creative works and are continuing to develop the field. (15) Using new technologies for measuring blood flow and electrical activity in the brain, researchers examine the neural indicia of attention, novelty, emotional response, and even the perception of beauty that are part of the aesthetic experience. In this way, brain science may offer copyright law a way forward, opening up the black box of aesthetic encounters to reveal which things are most salient when making the comparison at the heart of copyright infringement.

This is not to say that brain scans have suddenly laid bare the entire process of aesthetic judgment. Today's imaging technologies lack the spatial resolution and speed needed to capture all of the complexities of human thought, including thoughts about art, music, and literature. The brain regions and processes identified as being part of the aesthetic experience also perform other functions, making it difficult to determine which neural processes are central to aesthetic judgment. (16)

Nevertheless, the recent development of non-invasive techniques for recording the biological incidents of human thought has surfaced many insights into the experiences of audiences that were not available even a few years ago. (17) Much of the neurological activity that is involved in aesthetic appreciation is subconscious. As a result, reports from audience members themselves cannot do this activity justice. Brain imaging offers a window into aesthetic encounters that we are unable to articulate ourselves. (18) The substantial similarity analysis is based on judicial suppositions as to how audiences perceive creative works as well as a belief that the aesthetic experience cannot be measured. Neuroaesthetic research can confirm or refute these judicial hunches with new, objective measures of art appreciation that copyright law has long assumed could never exist. (19) By showing that our reactions to art can be measured, neuroscientific discoveries should force an immediate reconsideration of copyright law's current prohibitions on the use of survey evidence and expert testimony to better understand the audiences for creative works. By demonstrating that our aesthetic reactions to art are formed quickly, brain science suggests that the trier of fact should evaluate substantial similarity at the outset of a case, not after days of testimony on other issues.

Neuroscience has already reconfigured the law in many areas outside of copyright and appears poised for significant future influence. "[L lawyers are introducing so-called neurobiological evidence into court more than ever." (20) Thanks to studies of the plasticity of the developing brain, some criminal punishments for juvenile offenders are no longer allowed. (21) The vast field of tort law now takes fMRI imaging into account; such images were credited with forcing the National Football League into a settlement with thousands of former players suffering from Chronic Traumatic Encephalopathy. (22) Perhaps most analogous to the relationship between neuroaesthetics and copyright, another intellectual property regime, trademark law, appears poised to embrace neuroscientific evidence of consumer perception. (23)

In many ways, copyright and its problematic infringement test represent a particularly promising legal territory for neuroscientific analysis. It is true that the intricacies of aesthetic judgment mean that it is extremely difficult to know what a single person is thinking when staring at a picture or listening to a song. Fortunately, the substantial similarity analysis does not require a perfect understanding of one person's aesthetic experience.

Instead, the audience test depends on an aggregate sense of what audiences will think. This stands in sharp contrast to criminal law, where legal determinations typically hinge on the mental state of a single person. If neuroscientific evidence has already influenced criminal-law determinations, it stands to reason that this sort of evidence may be even more useful in an area like copyright law where the trier of fact only needs a general sense of an audience's overall mental state. (24)

This Article begins by exploring the centrality of audience reactions to copyright infringement. Even though the experience of audiences forms the linchpin of every infringement claim, this critical component of copyright law has attracted relatively little academic attention. Part I explains how the substantial similarity test requires courts and jurors to engage in a fraught and uncertain exercise: a channeling of the thought processes of relevant audience members. By and large, the test for infringement assumes a one-size- fits-all approach to aesthetic encounters. Whether juror or judge, the assumption seems to be that one's own subjective processing of the works at issue will translate into the same broadly applicable reactions as the original audience for the works at issue. Neuroaesthetics challenges this universalist take. Recent studies reveal that reactions to art differ depending on audience and on the type of creative work being processed by that audience.

Part II demonstrates that substantial similarity also depends on certain judicial assumptions about how human beings experience art. Courts insist that the subjective nature of art appreciation renders it impossible to measure. They also posit that aesthetic responses occur rapidly and are stable. Both of these assumptions help justify the current legal approach, which disclaims lengthy deliberation over the qualities of creative works and bars expert testimony to aid the trier of fact's substantial similarity analysis. Although brain imaging confirms that our impressions of creative works form quickly, fMRI and EEG readings show that this process does not have to remain impervious to outside observation.

Part III turns to a normative account of the future intersection of copyright law and neuroscience and recommends some related doctrinal reforms. Although it is tempting to believe that any tool facilitating a better understanding of audiences should be embraced by the courts, there are reasons for caution. We may not always trust audiences...