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Copyright Law and Derivative Works: Regulating Creativity

Copyright Law and Derivative Works: Regulating Creativity

Author: Omri Rachum-Twaig
Publisher: Routledge
ISBN: 9781138343276
Published In: November 2018
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Description
Contents

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Copyright law regulates creativity. It affects the way people create works of authorship ex-ante and affects the status of works of authorship significantly ex-post. But does copyright law really understand creativity? Should legal theories alone inform our regulation of the creative process?

This book views copyright law as a law of creativity. It asks whether copyright law understands authorship as other creativity studies fields do. It considers whether copyright law should incorporate non-legal theories, and if so, how it should be adjusted in their light. For this purpose, the book focuses on one of the many rights that copyright law regulates–the right to make a derivative work. A work is considered derivative when it is based on one or more preexisting works. Today, the owner of a work of authorship has the exclusive right to make derivative works based on her original work or to allow others to do so. The book suggests a new way to think about both the right, the tension, and copyright law at large. It proposes relying on non-legal fields like cognitive psychology and genre theory, and offers new legal-theoretical justifications for the right to make derivative works.

As the first book to consider the intersection between copyright law, creativity and derivative works, this will be a valuable resource for students, scholars and practitioners interested in intellectual property and copyright law.

Acknowledgments

Introduction

Regulating Creativity

The Role of the Derivative Work Right in Regulating Creativity

The Existing Legal Debate on the Derivative Work Right

Non-Legal Aspects of Creativity

Research Questions

Non-legal Aspects of Creativity – What is the Significance of Using Prior Knowledge?

The Legal World – What is the Scope of the Derivative Works Right and is it Justifiable?

An Overview of the Main Arguments

The Cognitive Process of Creation Includes the Use of Preexisting Expressions

The Creative Products – Genre Theory Identifies Common Building Blocks in Shares Creative Domains

Reexamination of the Justifications for the Derivative Works Right

The Existing Overlap Between the Derivative Works and Reproduction Rights

Criticizing the Current Right to Make Derivative Works

Redesigning the Derivative Works Right

Ch.

1 The Cognitive Aspects of Creativity

Introduction

The Creative Cognition—Theories

Stage and Componential Process Theories

Creativity as a Cognitive Process

Creativity as Problem Solving

Creativity as Problem Finding

Crystallization of the Unfocused Thought—The Crucial Role of Knowledge and Memory

Unfocused Thought—Associative Thought and Abstract Ideas

The Use of Task-Relevant Knowledge

The Use of Task-Relevant Knowledge and Memory in the Creative Process

Theoretical Analysis of the Use of Knowledge and Memory

Empirical Studies on Creativity

Historical Studies

Implications for Copyright Law

Conclusion

Ch.

2. Genre Theory and Common Building Blocks of Creativity

Introduction

The Development of The Detective Story: A Case Study

The Basis for the Idea of Genre: Static Approaches of Classification

Genre as a Logical Apriori Division of Art

Genre as Prescription

Genre as a Superior Division of Modes of Nature

The Rejection of Genre

Dynamic Approaches to Genre

Linguistic Approaches to Genre

Institutional Approaches to Genre

Metaphorical Approaches to Genre

Common Building Blocks as a Basis for Genre, The Tool that Links the Various Players in the Field of Creativity

Common Building Blocks as a Tool That Enables Creativity

Common Building Blocks as a Meaning-Making Tool

Implications for Copyright Law

Conclusion

Ch.

3 Re-examining the Justifications for the Derivative Works Right

Introduction

The Economic Approach

The Incentive-Access Approach

Product Differentiation and Rent Dissipation

A Criticism on Abramowicz and Differentiation in Derivative Works

Lock and the Labor-Desert Approach

Locke’s Justification to Private Property

Locke and Derivative Works

The Corrective Justice Approach

Corrective Justice and Private Rights

Corrective Justice and Derivative Works

A New Model for Derivative Works under Corrective Justice

Hegel and the Personality Approach

Hegel’s Doctrine of Right

Hegel and Derivative Works

Message, Meaning and Interpretation – The Personality of the Second Author

Conclusion

Ch.

4 The Derivative Works Right – A Critical Review

Introduction

The Development and History of the Current Right

Derivative Works and Reproduction under Current Law

Overlapping or Separate Rights

English Law – Explicit Statutory Overlap

United States Law – Overlap by Case Law

Existing Criticism of the Right to Make Derivative Works

Suggestions to Limit the Scope of the Right

Suggestions to Clarify the Interrelations between the Two Rights

Separation from the Reproduction Right and Limiting Remedies – Adjusting the Right to Make Derivative Work with Its Underlying Justifications

The Interrelations between the Right’s Scope and Remedies

The Underlying Justifications Require Limiting the Rights Remedies and Separating It from the Reproduction Right

Adjusting the Derivative Works Right to Its Underlying Justifications Resolves the Tension with Non-Legal Approaches to Creativity

Conclusion

Ch.

5 A New Model for the Derivative Works Right

Introduction

Separate but Not Equal: Separating the Derivative Works Right from the Reproduction Right

The Basis for the Suggested Definition

Implications of the New Definition

Alternative Remedy Regimes for the Derivative Works Right

The Need for Weaker Remedies

Injunctive Relief and Distribution of Profits

Blocking Copyright

Taxes and Levies

The Proposed Remedies Model – Compulsory Licenses for the Making of Derivative Works

Compulsory Licenses in Copyright Law

The Suggested Model and Its Advantages

Parallel Applicability of Additional Doctrines

Conclusion

Index & Bibliography

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