Transformation of negation

We can first transform the statement of the antithesis to creativity as given at the conclusion of the preceding chapter.

• A compilation has not the slightest trace of creativity if, and only if, it is constructed by an automatic mechanical procedure or so ... routine process and is an entirely typical or garden-variety end product.

The statement can be transformed by the negation of the clauses connected by, if, and only, if, to yield a positive statement of creativity.

• A work has the slightest trace of creativity if, and only if, it is not constructed by an automatic mechanical procedure or so ... routine process which results in an entirely typical or garden-variety end product.

The use of negation to derive the positive statement of creativity is legitimated by the antithetical character of ‘utterly lacking’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 359). The particular formulation is justified by the specific implication of the clause incorporated directly into it, by an end product with the slightest trace of creativity implied by an ‘end product ... devoid of even the slightest trace of creativity’ (p. 362). Negation is also a widely accepted and deeply historically rooted technique of verbal and then more formally logical reasoning (Bochenski, 1961; Kneale & Kneale, 1962). In this instance, it is also compellingly simple.

A comprehensive collection of all the possible combinations for creativity' can be displayed with a vertical ordering corresponding to the relative significance of elements to the opinion, descending from ‘so mechanical’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 362) or an automatic mechanical procedure to ‘garden-variety’ (p. 362) (Table 6.1), to reveal the overall distribution of the creative and the not-creative. The creative is concentrated in a major sequence of five rows at the head of the table, followed by a block of the not creative interrupted by two combinations for the creative. Creativity and the not-creative are then generally well separated from each other and strongly internally grouped, suggestive of the robustness and plausibility of the analysis.

The two interleaved combinations for the creative constitute exceptions to the overall pattern of distribution and could disturb the robustness of the analysis. The first encountered, on a downward reading of the table, is where an automatic mechanical procedure is used to construct an end product which is not entirely typical or garden-variety. The automatic mechanical procedure is not ‘so ... routine’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 362), which could be novel or rarely used. It would then still be closely proximate to the nonmechanical activity normally involved in the production of significant automatic mechanical procedures. The combination can then be regarded as analogous to the highest placed combination for the creative, from which it differs by the one

Table 6.1 The creative and the not-creative

Note: The customary ordering for logical truth tables, from true to false, is reversed, to bring creativity to the upper levels of the ordering, in accord with the differentiation by levels of creativity within the opinion.

Creativity 87 element of‘so mechanical’ (p. 362), and regarded as substantively involving a not automatic mechanical procedure. The next met embodies a tension between a so mechanical and highly routine process and the absence of routinicity from the product. It could then be understood as formally possible and combinatorially produced but a priori unlikely. The possibility of disturbance to the analysis can then be reduced, both from the analogy of the first interleaved combination with an instance of the creative within the overall pattern and by recognizing the unlikely character of the second combination.

The possibility of further reduction of the formulation for creativity, to obtain a simpler or sharper differentiation of the creative from the not creative, can be pursued. The classic approach would be to be to search for a single element, from an automatic mechanical procedure, ‘so ... routine’, ‘entirely typical’, or ‘gardenvariety’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, pp. 362-363), or a subset of those elements, to discriminate the outcomes, the creative and the not creative, from each other. No single element or subset of elements discriminates in this way, even when the interleaved combinations are, respectively, assimilated and excluded. A simpler or sharper conception of creativity cannot then be obtained by further formal transformations on the identified elements.

The elements that constitute the creative can themselves be considered. The creative in the major sequence is both not ‘so ... routine’ and ‘so ... routine’, not ‘entirely typical’, and ‘entirely typical’, not ‘garden-variety’, and ‘garden variety’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 362), but invar-iantly not an automatic mechanical procedure (Table 6.1). The only invariant element then is a not automatic mechanical procedure. The interleaved combinations can be brought into accord with this invariance, in contrasting ways: The first, understood as substantively involving a not automatic mechanical procedure, can be positively assimilated; the second, fully mechanical but identified as unlikely, can, provisionally, be discounted. A not automatic mechanical procedure also characterizes some combinations for the not creative, as the impossibility of further reduction by formal transformations had implied. It must then be understood as invariant within, although not distinctive of, creativity. For further substantiating and developing creativity, then, we must focus on the not mechanical.

The not mechanical must intersect with the conditions for creativity derivable from the decision. From its inclusion in a minimal degree of creativity, creativity must occupy the ‘extremely low’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345) level required for a minimal degree of creativity. It must also be sufficiently knowable to be incorporated into the possibility of obtaining knowledge of the level of creativity required for a minimal degree of creativity. As part of the ‘creative spark ... so trivial as to be virtually nonexistent’ (p. 359), creativity must occupy the level ‘so trivial as to be virtually nonexistent’ (p. 359), a level below the extremely low level required for a minimal degree. As a mediated constituent of originality, creativity must be applicable to all copyrightable works. Such works would exhibit very high and historically rare levels of creativity and creativity must then also comprehend the very highest possible level. In the absence of any specialized or technical conception of creativity, theconception of creativity must be consistent with ordinary discourse. Creativity must, then, occupy the level ‘so trivial as to be virtually nonexistent’ (p. 359), the ‘extremely low’ level required for a minimal degree of creativity, and the highest possible level. It should be knowable, applicable to all works, and consistent with ordinary discourse.

We can begin to populate the not mechanical.