Laws of creativity. The impact of legal systems on artistic practices and other creative endeavors

Universidad Pompeu Fabra

Course Description

  • Course Name

    Laws of creativity. The impact of legal systems on artistic practices and other creative endeavors

  • Host University

    Universidad Pompeu Fabra

  • Location

    Barcelona, Spain

  • Area of Study

    Justice Studies, Legal Studies

  • Language Level

    Taught In English

    Hours & Credits

  • Contact Hours

  • Recommended U.S. Semester Credits
  • Recommended U.S. Quarter Units
  • Overview

    Course focus and approach:
    This course aims at providing an in-depth discussion on the ways law regulates creativity and affects the content of works. Different regulations and case studies will be used to test how law affects creativity and to what extent.

    Course description:
    How does the law affect creativity? Is the law actually hindering creativity or is instead encouraging it? Are such impacts just quantitative or also qualitative? Are legal systems neutral to different forms of creativity or do they discriminate among forms? Answering these questions requires examining various branches of the law. The course focuses mostly in intellectual property law as the main legal tool for fostering creativity and innovation. Other areas of law such as freedom of expression, contract law, zoning law, and tax law will be also presented. Students will be provided with a theoretical overview of those areas to understand their rules and doctrines and how they affect creativity. The course will also offer the discussion of several case studies, including, among others, tattoos, memes, graffiti art, music sampling or content creativity in social media and other online platforms.

    Learning objectives:
    At the end of this course the students:

    • Will be able to understand how law affects creativity in different ways (by limiting or by encouraging it) and along different dimensions (quantity and quality).
    • Will be able to identify the main legal problems and disputes that affect creativity and the arts.
    • Will be acquainted with basic legal categories used in the field of copyright law; contract law; and constitutional law.
    • Will be able to understand how the law interacts with other factors (technology, social norms, psychology) and together have an impact on creativity and the arts.

      Course workload:
      Students are required to read a selection of texts and participate actively in the class. Students will have to write a final essay on one of the topics covered by the course, and take a midterm and a final exam.

    Teaching methodology:
    The course is mostly structured in lecture classes. Lectures will start with the theoretical introduction to the session subject, followed by discussions on different case-studies. Readings, provided by the professors will be used as a support for class discussion.

    Assessment criteria:

    •  Midterm exam: 30%
    •  Final exam: 30%
    • Essay paper: 30 %
    • Class participation: 10%

    WEEK 1
    Session 1. Interactions between law and creativity
    1.1. Defining creativity
    1.2. Creativity in context: Law, Technology, Social Norms, and Psychology
    1.3. Creatio ex nihilo v. sequential creativity

    WEEK 2
    Session 2. Intellectual Property Theories
    2.1. Intellectual Property and Human Values
    2.2. Intellectual Property as Reward
    2.3. Intellectual Property as Incentive: Does Intellectual Property foster or hinder creativity?
    2.3.1. The Incentive-Access Paradigm
    2.3.2. Intellectual Property and benefits
    2.3.3. Intellectual Property and costs
    Session 3. Copyrights and Incentives
    3.1. The impact of legal entitlements
    3.2. Extrinsic motivations of creators
    3.3. Intrinsic motivations of creators
    3.4. The psychology of incentives
    3.5. Endowment effect

    WEEK 3
    Session 4. Basics of Copyright law
    4.1. Concept of work
    4.2. Non-conventional subject matter
    4.3. Originality
    4.4. Term of protection
    4.5. Formalities
    Session 5. Who is an author?
    5.1. Non-human authors
    5.2. Artificial Intelligence and other machines
    5.3. Performers and creativity
    5.4. Improvisations and fixations: jazz, flamenco and folk music
    5.5. Authors and the death: rules on post-mortem protections

    WEEK 4
    Session 5. Who is an author?
    5.1. Non-human authors
    5.2. Artificial Intelligence and other machines
    5.3. Performers and creativity
    5.4. Improvisations and fixations: jazz, flamenco and folk music
    5.5. Authors and the death: rules on post-mortem protections
    Session 7. Creativity and moral rights
    7.1. Right of attribution
    7.2. Right of integrity
    7.3. Destroying works
    7.4. Abandoning rights
    Session 8. Creativity and exclusive rights
    8.1. Right of reproduction and the dimensions of the notion of copy
    8.2. Right of communication to the public: understanding creativity in dissemination
    8.3. Right of distribution: innovating markets and discrimination of prices
    8.4. Right to prepare derivative works: understanding transformative uses

    WEEK 5
    Session 9. Exceptions and limitations to exclusive rights
    9.1. Purposes of exceptions and limitations
    9.2. Protection of user rights
    9.3. Case studies in borrowing:
    - Parodies
    - Sampling and remixing
    - Memes
    - Fanfictions
    - Freedom of panorama
    Session 10. Plagiarism and copyright infringement
    10.1. The notion of substantial similarity
    10.2. Plagiarism as a non-legal term
    10.3 Different tests developed by courts
    10.4. Tests in music cases
    10.5. Tests in visual arts cases
    10.6. Tests in literary works cases
    10.7. Approppriationism

    WEEK 6
    Session 11. Midterm Exam

    WEEK 7
    Session 12.Creativity without copyright law
    12.1. IP’s Negative Space Theory
    12.2. Case studies:
    - Tattoos
    - Cuisine and cocktails
    - Fashion
    - Graffiti art
    Session 13. Creativity and digital copyright
    13.1. Digital Renaissance: how digital technologies have encouraged creativity
    13.2. Amateurism and the problem of quality of works
    13.3. Creativity and Big Data
    13.4. Creativity and online platforms
    Session 14. Creativity, copyright law and gender perspectives
    14.1. Different levels of protection for female associated creativity?
    14.2. Do valuable rights end up in the hands of men?
    14.3. Differences in enjoying exceptions and limitations?

    WEEK 8
    Session 15. Freedom of information and expression
    15.1. Why should free speech be a fundamental right?
    15.2. Democratic theories of freedom of speech
    15.3. Autonomy-base theories
    15.4. The marketplace of ideas
    15.6. Tolerance
    Session 16. Censorship of cultural creations
    16.1. Prior restraints
    16.2. Incitement to illegal activity and the arts
    16.3. Obscenity laws and the arts
    16.4. Racist and hate speech and the arts
    16.5. Profanity, indecency and the arts

    WEEK 9
    Session 17. Defamation and image rights
    18.1. Right to honour and Twitter
    18.2. Image rights and Instagrammers
    18.3. Publicity rights and Youtubers
    18.4. Privacy and the arts
    Session 18. Commercial speech and creativity in the advertising industry
    19.1. The constitutional protection of advertising and other commercial messages
    19.2. Activity-based regulation of advertising
    19.3. Content-based regulation of advertising
    19.4. Shocking ads
    19.5. Sexism and advertising
    19.6. Religion and advertising

    WEEK 10
    Session 19. Creativity and contracts
    20.1. Artists and performers in breach
    20.2. Publishing agreements and incentives to creativity
    20.3. Resale royalties for visual artists
    20.4. Exclusivity and non-competes
    Session 20. Creativity and the State: Legal Subsidies, Public art, zoning and construction laws
    21.1. Public funding and the arts
    21.2. Tax law and cultural sponsorship
    22.1. Public sculptures
    22.2. Murals and the law
    22.3. Legal limits to architecture
    Session 21. Final Exam

Course Disclaimer

Courses and course hours of instruction are subject to change.


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