UIC Review of Intellectual Property Law


Stephen McJohn


Copyright plays a central role in regulating cultural transmission. Authors are given exclusive rights to copy, adapt, distribute, perform and display their works. These rights have limits, most notable fair use and the non-protection of ideas. In setting the bounds of those limits, courts implicitly follow some basic folk psychology. This paper would explore how neuroscience can be used to illuminate and challenge those background assumptions. Copyright law implicitly assumes that literal copying is not necessary for cultural transmission. If there are many ways to express the same idea, then transmission of an idea will not be restricted by prohibiting copying of one way of expressing that idea. As the Supreme Court stated in Eldred v. Ashcroft, 537 US 186 (2003), fair use and freedom of expression provide less protection for the copying the work of others. However, work with mirror neurons suggests that literal copying may be a necessary step in many kinds of cultural transmission. Rather than ideas being transmitted at an abstract level, much learning and communication may occur as basic imitation. It may be that, contrary to the assumptions of copyright law, abstract ideas are often not so easily separated from their concrete expression. That might have implications for copyright analysis. First, more latitude could be appropriate for some types of literal copying than fair use or the idea/expression dichotomy presently allow. Second, certain types of literal copying would qualify as “transformative” for purposes of fair use, although there is no actual change in the form of the relevant work.