Left-Brain versus Right-Brain: Competing Conceptions of Creativity in Intellectual Property Law

Abstract

An ongoing debate at the heart of intellectual property law pits those who argue for efficiency objectives against those who seek to advance other social goals. Proponents of the former model focus on the need for intellectual property regimes to provide incentives to creators, while proponents of the latter aspire to protect creators’ natural rights or secure an environment for greater human flourishing. Both observers and participants in these disputes typically lose sight of a common ambition underlying these competing conceptions of intellectual property law — the desire to promote creativity. Promoting creativity can serve both the incentive goals of intellectual property and advance more holistic personal, cultural, and social interests. Psychological, neurobiological, and cultural research now provides a wealth of information on how to promote creativity. Unfortunately, intellectual property law has failed to recognize these insights and instead remains moored in doctrine derived from archaic stereotypes about creativity and the creative process. These distorting stereotypes appear, for example, in the laws concerning joint authors and joint inventors. Based on historical and comparative law evidence, this Article argues that joint creator law has evolved, at least in part, not from its traditionally identified sources, but from commonly held stereotypes about left-brain scientists versus right-brain artists engaging in fundamentally distinct creative processes. Modern research shows that these creativity stereotypes are false. As a result, joint creator law specifically, and intellectual property law more generally, likely do not promote progress to the fullest extent feasible. Stereotype-driven doctrine appears to hinder creativity and valuable collaboration in both artistic and technological endeavors. Leveraging these interdisciplinary teachings yields valuable insight for how to revise patent and copyright law to promote creativity more effectively.