Copyright Law and Derivative Works
Regulating Creativity
Routledge Research in Intellectual Property Series

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 theories, 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.

Table of Contents

Acknowledgments

Introduction

1. Regulating Creativity
2. The Role of the Derivative Work Right in Regulating Creativity
3. The Existing Legal Debate on the Derivative Work Right
4. Non-Legal Aspects of Creativity
5. Research Questions

1. Non-legal Aspects of Creativity – What is the Significance of Using Prior Knowledge?
2. The Legal World – What is the Scope of the Derivative Works Right and is it Justifiable?

1. An Overview of the Main Arguments

1. The Cognitive Process of Creation Includes the Use of Preexisting Expressions
2. The Creative Products – Genre Theory Identifies Common Building Blocks in Shares Creative Domains
3. Reexamination of the Justifications for the Derivative Works Right
4. The Existing Overlap Between the Derivative Works and Reproduction Rights
5. Criticizing the Current Right to Make Derivative Works
6. Redesigning the Derivative Works Right

Ch. 1 The Cognitive Aspects of Creativity

1. Introduction
2. The Creative Cognition—Theories

1. Stage and Componential Process Theories
2. Creativity as a Cognitive Process
3. Creativity as Problem Solving
4. Creativity as Problem Finding
3. Crystallization of the Unfocused Thought—The Crucial Role of Knowledge and Memory

1. Unfocused Thought—Associative Thought and Abstract Ideas
2. The Use of Task-Relevant Knowledge
4. The Use of Task-Relevant Knowledge and Memory in the Creative Process

1. Theoretical Analysis of the Use of Knowledge and Memory
2. Empirical Studies on Creativity
3. Historical Studies
5. Implications for Copyright Law
6. Conclusion

Ch. 2. Genre Theory and Common Building Blocks of Creativity

1. Introduction
2. The Development of The Detective Story: A Case Study
3. The Basis for the Idea of Genre: Static Approaches of Classification

1. Genre as a Logical Apriori Division of Art
2. Genre as Prescription
3. Genre as a Superior Division of Modes of Nature
4. The Rejection of Genre
4. Dynamic Approaches to Genre

1. Linguistic Approaches to Genre
2. Institutional Approaches to Genre
3. Metaphorical Approaches to Genre
5. Common Building Blocks as a Basis for Genre, The Tool that Links the Various Players in the Field of Creativity

1. Common Building Blocks as a Tool That Enables Creativity
2. Common Building Blocks as a Meaning-Making Tool
6. Implications for Copyright Law
7. Conclusion

Ch. 3 Re-examining the Justifications for the Derivative Works Right

1. Introduction
2. The Economic Approach

1. The Incentive-Access Approach
2. Product Differentiation and Rent Dissipation
3. A Criticism on Abramowicz and Differentiation in Derivative Works
3. Lock and the Labor-Desert Approach

1. Locke’s Justification to Private Property
2. Locke and Derivative Works
4. The Corrective Justice Approach

1. Corrective Justice and Private Rights
2. Corrective Justice and Derivative Works
3. A New Model for Derivative Works under Corrective Justice
5. Hegel and the Personality Approach

1. Hegel’s Doctrine of Right
2. Hegel and Derivative Works
3. Message, Meaning and Interpretation – The Personality of the Second Author
6. Conclusion

Ch. 4 The Derivative Works Right – A Critical Review

1. Introduction
2. The Development and History of the Current Right
3. Derivative Works and Reproduction under Current Law

1. Overlapping or Separate Rights
2. English Law – Explicit Statutory Overlap
3. United States Law – Overlap by Case Law
4. Existing Criticism of the Right to Make Derivative Works

1. Suggestions to Limit the Scope of the Right
2. Suggestions to Clarify the Interrelations between the Two Rights
5. Separation from the Reproduction Right and Limiting Remedies – Adjusting the Right to Make Derivative Work with Its Underlying Justifications

1. The Interrelations between the Right’s Scope and Remedies
2. The Underlying Justifications Require Limiting the Rights Remedies and Separating It from the Reproduction Right
3. Adjusting the Derivative Works Right to Its Underlying Justifications Resolves the Tension with Non-Legal Approaches to Creativity
6. Conclusion

Ch. 5 A New Model for the Derivative Works Right

1. Introduction
2. Separate but Not Equal: Separating the Derivative Works Right from the Reproduction Right

1. The Basis for the Suggested Definition
2. Implications of the New Definition
3. Alternative Remedy Regimes for the Derivative Works Right

1. The Need for Weaker Remedies
2. Injunctive Relief and Distribution of Profits
3. Blocking Copyright
4. Taxes and Levies
4. The Proposed Remedies Model – Compulsory Licenses for the Making of Derivative Works

1. Compulsory Licenses in Copyright Law
2. The Suggested Model and Its Advantages
3. Parallel Applicability of Additional Doctrines
5. Conclusion

Conclusion

Index & Bibliography

Omri Rachum-Twaig is adjunct professor of law at the Faculty of Law, Tel Aviv University, Israel. He teaches and writes about copyright, cyber and information law, artificial intelligence and emerging technologies. He has published on all these matters in leading law reviews and journals, has won several academic awards and prizes, and his work is frequently cited in scholarly work and courts, including the Supreme Court of Israel.