The drivers of creativity and innovation in copyright discourse: a value chain analysis across cultural industries
Ke Yu Faculty of Education, University of Johannesburg

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Colin Darch Faculty of Law, University of Cape Town; Human Sciences Research Council

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We build on the well-established critique, primarily in the US literature, of the following assumptions: (1) copyright protections serve to incentivise creativity; (2) copyright is designed with such incentivisation as its primary purpose; and (3) a standardized set of copyright protections should ideally be applicable to all forms of cultural production, across all situations in all countries. These assumptions lead to two fundamental conceptual flaws in much current copyright policy discourse: (1) it conflates concepts such as incentive, reward, and recognition; (2) it is nomothetic in character insofar as the existing structural and procedural diversity of the different cultural industries that it governs is inadequately acknowledged. Our critique in this article is not, therefore, a general one, but is limited to a specific theory of copyright, which pretends that copyright is an incentive to creativity while the evidence indicates that it is not. We highlight the importance of taking account of the whole ‘creativity value chain’ in the different industries with their various components – the creator, the copyright holder, the distributor, and the market. Drawing on case studies of three creative industries: literary writing, film, and fashion, we demonstrate that not only is there currently considerable heterogeneity among these industries, but that there has also been heterogeneity within each industry at different periods and in different contexts. We argue that this flexibility is a beneficial characteristic of the current functioning of copyright that should be defended against pressures in favour of harmonization.

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