To promote the creative process: intellectual property law and the psychology of creativity.

• Author: Mandel, Gregory N.
• Position: Symposium Creativity and the Law

INTRODUCTION

Intellectual property is the primary area through which the law seeks to motivate and regulate human creativity. The U.S. Constitution grants Congress the power "[t]o promote the Progress of Science and useful Arts," (1) and Congress responded by enacting patent and copyright law in an effort to spur technological and artistic innovation. Because innovation usually requires some form of creativity as an antecedent, intellectual property law generally should also promote, and certainly should not impede, creativity. Despite the value of facilitating creativity for intellectual property law, understanding creativity is hardly something within the competent domain of law and legal analysis. Not surprisingly, the legislative and judicial development of intellectual property law has paid remarkably little attention to modern knowledge concerning how to promote creativity. Over the past several decades, however, a wealth of psychological research has provided new insights into creativity and the creative process. This research yields valuable lessons for intellectual property law and indicates that certain areas of patent and copyright law may counterproductively hinder the very creativity that the law is designed to inspire.

Psychological research on creativity provides insight into at least three cognitive domains pertinent to the task of intellectual property law: motivation, collaboration, and convergent versus divergent thought processes. A variety of psychological research explores differences between convergent and divergent thinking, and, relatedly, between problem-finding and problem-solving creativity. Problem-finding creativity concerns identifying a new problem that no one has recognized before, while problem-solving creativity involves solving an identified problem. Research indicates that these two types of creativity can involve different cognitive processes and can lead to different types of creative achievement. Intellectual property law, however, generally treats both types of creativity identically, producing legal doctrine that does not motivate or reward either type optimally. Patent law, for example, applies the same nonobviousness requirement to both problem-finding and problem-solving innovation, even though the activities that produce such innovation can be significantly different, can result from differing motivation, and likely could best be promoted by different manners of reward.

Experimental cognitive research also reveals that intrinsic motivation is highly conducive to creative productivity, while purely extrinsic motivation tends to decrease creative function. This robust finding sounds a note of caution across intellectual property law--law's ability to promote creativity not only may be limited, but could even be detrimental to the extent it turns an artist's or inventor's internally motivated activity into one conducted primarily for the copyright or patent prize. Experiments reveal that certain types of extrinsic motivation can enhance intrinsic motivation, although the line that separates positive from negative extrinsic influences is subtle. (2) In general, extrinsic motivation that confirms the creator's competence without instituting control can synergistically enhance intrinsic motivation, while extrinsic influences that are perceived as controlling counteract intrinsic motivation, and can reduce creativity. While certain aspects of intellectual property law may successfully leverage the extrinsic motivation of a creativity prize, other aspects are more troubling and should be revised in light of these creativity studies.

Additional psychological research highlights the dynamic value of collaboration to creativity. Studies reveal that group collaboration can allow group members to build on each others' ideas in ways that synergistically enhance individual and overall creativity. (3) Similarly, various research finds that artists and scientists generate more creative outputs when exposed to a greater variety of input references, an outcome that is more likely in collaborative research. Problematically, the laws of joint authorship and joint inventorship in intellectual property actually dissuade certain collaboration. The reasons for this development are not easy to trace, but appear to be due in part to popular, stereotyped views of differences in the creative process between "left-brain" scientists versus "right-brain" artists. Though modern research has debunked these myths about disparate creative function, intellectual property law remains moored in stereotypes of creativity that continue to influence the law. (4) The disincentive effects of joint inventor and joint author law on collaboration are highly problematic because a substantial proportion of technological innovation is the result of collaboration, and a significant and growing amount of artistic work is as well.

The import for intellectual property law of the various strains of psychology research discussed above intersect at an area vital to development at the forefront of creative achievement: the coordination of large-scale collaborative creativity. Large-scale collaborative projects have become critical in many areas of twenty-first century research due to the need for multidisciplinary expertise and substantial resources to push the envelope of human knowledge. Large-scale collaborative projects have become common in and across private, government, and university research, as well as in a new form of complex creation termed "open and collaborative peer production." Open and collaborative peer production involves widely dispersed contributions to a project by vast networks of individuals working towards a common goal. These individuals may be spread across the globe, may rarely interact, and may not even know each other. Open and collaborative peer production is revolutionizing fields as diverse as software, film, music, and biotechnology.

Promoting large-scale collaborative creativity presents a complex challenge. Psychological theories of creativity were developed primarily in the context of individual and small-group settings. Those theories face challenges in large-scale settings because creativity in such situations necessarily entails significant degrees of formal organization and anonymity for the contributor. Contributions in such circumstances raise issues under motivational theory because they require individuals to be motivated for individual creativity but also to embrace certain extrinsic organization and a lack of individual autonomy, both of which can detract from creativity. Investigating the motivation and promotion of creativity in large-scale circumstances raises issues at the forefront of psychological research that are critical to the goals of intellectual property. The potential for large-scale collaborative projects to succeed likely depends on the potential for individuals to identify themselves with the social group organizing the project, such that the individual's social identity causes them to internalize the group goals, producing a form of intrinsic motivation. Understanding this internalization process, and how to support it, has important implications for intellectual property law, as intellectual property doctrine can significantly affect how large-scale collaborative work is conducted and who takes part in it.

Though legal analysis of intellectual property law has long been economic, the psychology of creativity also plays a central role in the success of any intellectual property regime. Psychological and economic analysis of intellectual property law are not contradictory endeavors, but should complement each other to develop as deep and nuanced an understanding as possible of how to optimally promote progress. By incorporating current psychological understanding of cognitive thought processes, motivation, and collaboration, it is possible to adapt intellectual property law to more effectively support large-scale collaborative creativity in order to promote the creative process throughout technology and the arts. (5)

1. DIVERGENT VERSUS CONVERGENT THINKING

   Psychological studies of creativity yield valuable lessons in three diverse areas highly pertinent to intellectual property law: divergent versus convergent cognitive thought processes, motivation, and collaboration. The following sections examine each of these areas sequentially, followed by a discussion of the import of the combined findings for promoting large-scale collaborative creativity.

   Psychologists commonly view creativity as possessing at least two, and possibly three, characteristics. (6) Creativity requires the production of something that is both novel and appropriate. (7) Novelty for psychologists, which is also referred to as "originality," is remarkably akin to the novelty requirement in patent law and the originality requirement of copyright law.8 Reproducing past work or repeating existing knowledge is not novel, and therefore not creative. (9)

   Appropriateness, also referred to as "adaptivity," requires that an idea be recognized as socially useful or "valuable in some way to some community. (10) The value of appropriateness can be derived from any of a number of characteristics, such as utility, merit, importance, uniqueness, or the desirability of a product, service, process, or idea. (11) How appropriateness is achieved can vary between science and the arts. For a technological invention, appropriateness will often require functionality; for artistic expression, it may require the ability to keep the audience's attention or cause a powerful emotional effect. (12)

   Some psychologists add a third element to the specification of creativity, requiring that a creative accomplishment be heuristic rather than algorithmic. (13) Algorithmic tasks are projects where the "path to the solution [or goal] is clear and straightforward." (14) Heuristic tasks, in contrast, are ones that...