Assessing Creativity from the Viewpoint of Law

Abstract

Originality is the main criterion for creating an author’s work. However, authors are often influenced by previous works of other authors that they have seen, heard or experienced. The aim of this study is to identify criteria for determining creativity in authors’ works, trying to find and define the difference between accidental influence and deliberate misappropriation or plagiarism. This article does not claim an in-depth analysis of creativity and originality from a social science perspective. It is more a scientific essay on creativity from a law science point of view, so that further research can be carried out in the field of authorship and its determination. In order to find an answer to the research question (Where does influence end and plagiarism begin?), theoretical framework and knowledge about creativity were observed, international and national laws were studied, case law from different countries was researched, materials of international conferences were examined, as well as information accessible on the Internet on copyright issues was observed. The research used a descriptive method to investigate the works of various researchers on the types of mutual influence, regulatory framework and court practice in this field, as well as a grammatical, systemic, teleological, and historical interpretation of legal norms to assess the inadequacy of existing legal norms and propose the necessary amendments in legislative enactments. The main result of this study is understanding that the factor of consciousness or subconscious forms the main criteria. If the influence is unintentional, the copyright of the original work is not infringed, but if repetition is intentional, when it goes beyond originality, the new work is considered to be an appropriation of authorship or plagiarism.