Marshall Review of Intellectual Property Law
The internet, a world-wide copy machine, caused some rethinking of copyright law. Cognitive science increasingly suggests that humans are smaller scale, more adaptable, copy machines. Copyright law may again change. V.S. Ramachandran’s "The Tell-Tale Brain" discusses how mirror neurons may enable imitation, detection of others’ intention, and empathy. Ramachandran suggests that mirror neuron circuits could provide the neural substrate for cultural transmission, language, and even consciousness. This essay speculates on the implications for copyright law. It’s not news that people copy. But if cognition and culture depend on the bottom-up imitation by mirror neurons, perhaps some of the central tenets of copyright bear reexamining. Copyright’s central doctrine, the idea/expression dichotomy, could prove illusory if abstraction is dependent on embodied cognition - meaning that abstract ideas cannot be so easily separated from their expression as copyright law assumes. If cultural transmission is so directly tied to literal copying, fair use would have to give more respect to what it now terms merely "reproductive" uses. There would be reason to reexamine the Supreme Court’s statement in Eldred v. Ashcroft that mere copiers had little expressive interest. There could be more weight for such recent proposals to take into account the value of user innovation or to give protection to personal uses. On the flip side, in extending protection, copyright might give greater respect to the creative aspect of mere copiers. It remains to be seen whether mirror neurons underlie imitation, and whether that builds into language and cultural transmission. But copyright law may awaken from its dogmatic slumbers and take more seriously the question of how our minds work.
14 J. Marshall Rev. Intell. Prop. L. 410 (2015)