ABSTRACT
Introduction
Previous studies have shown two interesting problems associated with the strategies identified thus far. The first one was the artefactualised notion of a work that emerged thanks to the legal, economic, and cultural development of society; we have already observed the criticism of such a perspective on the example of the essentialist movement in aesthetics. Among the charges levelled against it was the chilling-effect of an identification based on such a notion; the unfitness to the artistic practices and tendencies, or its isolated view of actors engaged in artistic communication. The second observation can be drawn from the historical outline compared with a contemporary approach to the subject matter of copyright, showing the dual foundation of a work on requirements of originality and fixation.
The psychologist E.P. Torrance noted that the concept of ‘creativity’ (equally well understood as ‘originality’) is undefinable because it appeals to many different senses and is perceived multidimensionally in each case. However, the dominant theory in copyright law reflects the famous ruling in Bleistein v. Donaldson Lithographic Co. (1903), which held that it would be a dangerous undertaking for persons only trained in the law to constitute themselves as the final judges of the worth of various works. It is still the dominant view in copyright theory that such a static and reified notion of a work guarantees the most objective and fair solution that can balance the interest of all parties and does not allow any subjective aesthetic judgements. The aim of this chapter is to provide another perspective on notions that are common in copyright theory and that challenge the more traditional views on copyright’s paradigms: neuroaesthetics and cognitive science.
As in the previous sections, Chapter 3 will be divided into three parts named after the dominant motif: in this case, empirical studies. The first, Observation, leads us through the meanders of neuroscientific investigations into the neural triggers and indicators which are activated while experiencing an artwork. Since the aim of neuroscientific research in aesthetics is to identify an artwork, we juxtapose the results with a similar notion in copyright law: that of a work. The initial, somewhat naïve, hypothesis for this part was the hope that there are some verifiable and falsifiable biochemical measures that indicate the status of a work; or that we may at least point to empirical research that supports the main paradigms incorporated 83within copyright law. Over time, however, the study revealed a completely different perspective, challenging the artefactual notion of a work and the dichotomous strategy of its identification. The complementary research on cognitive science is presented in the second part of this chapter, Induction. The aim of this section is to support and challenge the notion of copyright subject matter by juxtaposing it with a cognitive perspective on the notion of originality. Behind such a decision was the conclusion drawn from Chapters 1 and 2, namely that the originality requirement in copyright law (or in aesthetics: aesthetic value) may be applied as an identification measure for a work. Both strategies, neuroaesthetics and cognitive science, may not be robust enough to be fully and exclusively implemented in copyright theory, but they underline several factors that should be considered for further research: the inevitability of making subjective assessments about the work and the necessity of including an extended, comprehensive, and interdisciplinary context to assess the requirement of originality of a work. The final part, Deduction, presents selected conceptual attempts from copyright theory to address some of the problems observed in cognitive sciences and neuroaesthetics.
