Hetcher, Steven A. --- "Transforming the Chicago School Approach to Creativity in Copyright" [2011] ELECD 429; in Ghosh, Shubha; Malloy, Paul Robin (eds), "Creativity, Law and Entrepreneurship" (Edward Elgar Publishing, 2011)

Book Title: Creativity, Law and Entrepreneurship

Editor(s): Ghosh, Shubha; Malloy, Paul Robin

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848449879

Section: Chapter 5

Section Title: Transforming the Chicago School Approach to Creativity in Copyright

Author(s): Hetcher, Steven A.

Number of pages: 20

Extract:

5. Transforming the Chicago School
approach to creativity in copyright
Steven A. Hetcher

INTRODUCTION

The promotion of creativity is increasingly seen as the raison d'être of
copyright law.1 This conception is grounded in the U.S. Constitution, as
creativity is seen as the modern generalization of the constitutional text
referring to science and the useful arts.2 Combine this notion with the
hegemonic economic approach to copyright and one is driven to the con-
clusion that economic incentives should be employed in order to optimize
creativity.
The goal of this chapter is to add something both to our understanding
of creativity and to the economic approach to law. Indeed, by the lights
of the methodology I employ, either both or neither will be the result. I
have in the past and continue to advocate for a form of legal analysis in
which top/down theoretical frameworks are applied to particular subject
areas in order to illuminate them, and contra wise; these factual settings
are viewed as Petri dishes to test the explanatory relevance and accuracy
of the theoretical frameworks.3 The topic of creativity in copyright is the
particular area to be explored in this chapter. While the main goal here
will be to make ground in understanding creativity, we will see that this
study of creativity ends up throwing strong support in the direction of
certain more general claims that have been advanced by proponents of the
second-generation economic approach.4
Two of the most significant ...