Description
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
Table of Contents
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
Conclusion
Index & Bibliography