The Cognitive Science Explanation For Why Copyright Doesn’t Make Much Sense

Michael Scott points us to a paper by law professor Stephen McJohn, in which he compares what cognitive scientists have learned about the role of mirror neurons to copyright, and concluded that we may want to rethink copyright law altogether. While the paper does make some interesting points, I will admit that it’s a bit thin at certain points — especially connecting the two concepts. I’d be much more interested in a more fully fleshed out discussion. However, the paper does point out that we appear to learn and communicate by copying what we see and hear. In some regards humans are copying machines. And this presents problems for a copyright world in which copying is seen as a bad thing.

The existing policy is that ideas should be spread freely, but there is little harm in prohibiting copying of one particular expression of an idea. Other parties are free to copy the idea from the work, simply by expressing it in a different way — and any idea may be expressed in many ways. But this may rely on a false premise. If people learn and communicate in the bottom-up fashion suggested by mirror neurons, it may not be so easy to separate an idea from the expression of the idea. In a similar vein, taking a specific issue, the question whether sampling is fair use could look different if more weight were given to literal copying. Courts have held that sampling — using short, literal copies of song snippets in new recordings — is not fair use. Use of such “verbatim copying” weighs heavily against fair use, as opposed to copying that transforms the first work by adding creative elements. But such verbatim copying may be much more worthwhile, if mere copying has the importance that Ramachandran suggests [in the research about mirror neurons]. So, for example, there would be another argument for legal protection for personal, noncommercial uses, as important as they may be for learning, cultural transmission, and self-expression

As I said, some of the connections between the two fields comes across as a bit weak in the short paper, and it would be a lot more interesting to see these ideas further fleshed out to see if there really is a connection to be made here. However, it does suggest some interesting areas of research.

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