Copyright Law and Derivative Works

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.

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