Analysing the legal meaning of ‘copying’ through an empirical study of UK substantial similarity copyright cases and psychological explanations of litigant trends

<ul><li>The substantial similarity test has been criticized as difficult to apply. Nevertheless, it plays a central role in deciding the extent to which works similar to existing copyright works are improper copies or new works that should be allowed. This article provides an empirical analysis of UK substantial similarity copyright cases, contributing to this discussion by revealing how this test is applied in practice. What type of substantial similarity copyright cases tend to be brought by litigants, what factors are relevant in the judgments and what patterns of claimant and defendant losses are revealed?</li><li>It finds that courts are slightly more likely to find no copyright infringement, largely due to defendants successfully arguing that similarities are commonplace and/or that they created the work independently. However, defendants are likely to lose at the substantial similarity stage where courts find there has been copying and that such copying is substantial.</li><li>Adopting an interdisciplinary approach, the article argues that the results reflect psychological findings of human tendency to overvalue their own creativity and that courts adopt an approach to creativity that reflects a psychological approach to creative processes. The article demonstrates how this psychological framework of the processes involved in creativity can illuminate our understanding of the idea/expression divide and its common criticisms.</li></ul><p dir="ltr"><br></p>