Long, Doris Estelle
August 2007
Albany Law Review;2007, Vol. 70 Issue 4, p1163
Academic Journal
Even though creativity lies at the heart of present copyright laws, the impulse to create--or more precisely what triggers such creativity--remains largely unexamined. Coinciding with the digital demand for access to information, new standards for "cash 'n' carry" creativity are being urged with little regard to what level of authorial control may be required to ensure continued enrichment of the public domain through the creation of vibrant new works. Scientific, psychological, and sociological studies indicate that "cash 'n' carry" creativity fails to implement the critical triggering mechanisms for the creative impulse. Moreover, such "cash 'n' carry" attitudes toward authors' rights threaten to establish new international harmonization standards that continue the inequality of earlier protection regimes. Instead of freeing works for the public domain, current movements such as "access to knowledge," if not carefully circumscribed in the copyright area, may adversely impact efforts by developing nations and previously excluded voices to protect local creative industries. Dissonances between the roles of culture industries in economic development, and perceived boundaries of the public domain, must be respected. In fact, new international standards for the protection of "authors' rights" should actually be broadened in certain instances to allow protection for those voices whose creative works have been excluded or ignored in previous regimes, including protection for indigenous works of folklore and other traditional cultural expressions, and for works whose intellectual creativity has been previously under appreciated, including traditional "women's arts." Ultimately "cash 'n' carry" creativity as an international standard, without sufficient calibration for cultural and other dissonances, will only continue to marginalize the already-excluded. Effective harmonization requires more.


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