Introduction: Non-human animals are characterised by most legal systems as property, with questions of their welfare often framed by prior concerns of ownership, liability, and responsibility. While the non-human animal as property is often criticised by contemporary animal welfare advocates as ignoring the sentience and autonomy of the animal, the shift to property in most legal systems was ostensibly for the purposes of securing welfare (by ensuring responsibility of guardians). Nevertheless, the characterisation of non-human animals as property raises certain limitations in most legal approaches. A particular limitation is in terms of the inconsistency of the property model with contemporary research and developing knowledge in animal sentience and consciousness, particularly regarding questions of intention and, perhaps most interestingly, creativity. For example, the question of non-human animals as creators was put before the US courts in the "Monkey Selfie" copyright claim from PETA, acting on behalf of Naruto (the Celebes crested macaque). The episode famously asked the court to consider critical questions of authorship, creativity, and accomplishment in a non-human animal.
Methodology: This paper engages current research on the consciousness and creativity of the animal subject in behaviour science and undertakes an interdisciplinary approach to reform in the law, with a particular interest in the “creator” in intellectual property law as a key example. Working from the concept of the “author” in law and culture, this review has examined behaviour science, philosophical ethology, critical theory, and legal theory in order to re-imagine the animal subject in legal systems. The research has been undertaken across an extensive range of species and research in animal cognition and creativity.
Main Findings: Interpretations of intent are often integral to understandings of creativity, and intentionality in animal consciousness research provides some evidence towards the need for a more nuanced understanding of the animal subject before the law, with interests beyond the notion of an inanimate property or chattel.
Principal Conclusions and Implications for the Field: There is compelling evidence and a firm basis, from both the scientific and legal literature, for policy and legislative reform in the field of animal welfare, with particular emphasis on developing effective programmes of advocacy for animals as legal subjects. Transforming the animal from property to “personhood” presents important opportunities for addressing animal welfare, animal cruelty, and effecting sentencing reform for offenders.