This Article cuts against the grain of modern copyright law by making the case that a more substantive approach to the issues of creativity and authorship would lower costs, streamline the system, and raise the level of socially beneficial creativity. Increasing the creativity requirement is designed to curb what might be called artistic product differentiation that has no real impact on economic, cultural, and social development. Infusing an element of substance into authorship by requiring some level of preconception by authors would produce the same result. After all, except in the most unusual instances, when an author does not know until after the fact that he has created something, it is hard to make a case that an incentive to create played a role. Raising both of these standards would reduce costly, and perhaps chilling, distributive battles and properly focus copyright on the internalization of efforts that are more likely to advance the public interest by raising the level of creative contribution.
Harrison, Jeffrey L.
"Rationalizing the Allocative/Distributive Relationship in Copyright,"
Hofstra Law Review: Vol. 32
, Article 2.
Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol32/iss3/2