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Rethinking Copyright and Personhood

One of the primary theoretical justifications for copyright is the role that creative works play in helping develop an individual’s sense of personhood and self-actualization. Typically ascribed to the writings of Immanuel Kant and Georg Wilhelm Friedrich Hegel, personhood-based theories of copyright serve as the foundation for the moral rights prominent in European copyright law and mandated by the leading intellectual property treaty, which give authors inalienable control over aspects of their works after they have been created. The conventional wisdom about the relationship between personhood and copyright suffers from two fatal flaws that have gone largely unappreciated. First, in terms of intellectual provenance, it is inconsistent with both the philosophical spirit of Kant and Hegel as well as their specific writings about the protection of creative works. Second, focusing exclusively on the treatment of works after they have been created adopts too narrow a vision of how creativity develops personality by ignoring the self-actualizing benefits of the creative process itself. This Article seeks to address both deficiencies in the traditional approach to copyright and personhood theory. It begins by examining Kant’s and Hegel’s general philosophical approaches and their specific writings about copying to show that neither provides a strong foundation for a robust account of copyright based on self-actualization. It then reconceives the relationship between copyright and personhood based on a more expansive vision that does not simply regard creative works as artifacts but rather as sources of engagement that can develop personality and personhood based on aesthetics, psychology, and literary theory. It then explores the implications of a theory that values the creative process for the process itself and not just for the artifacts it creates; specifically, how it takes the interests of follow-on authors into account, emphasizes educational uses, and provides an affirmative theory of the public domain. At the same time, the internal logic of this approach carries with it several limitations regarding commercialization and dissemination.

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