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.

• 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; 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.

"From mashups to fan fiction, the digital age has been a wellspring of creativity that builds on copyrighted works. Drawing on insights from cognitive psychology and creativity studies, Omri Rachum-Twaig articulates a provocative new theory for understanding the rationale for, proper scope of, and remedial framework for copyright law's right to prepare derivative works. Such fundamental rethinking of how society can best promote cumulative creativity deserves serious attention."Professor Peter S. MenellKoret Professor of Law and Director, Berkeley Center for Law & TechnologyUniversity of California at Berkeley School of Law"Copyright Law and Derivative Works offers a novel account of the nature, justification and scope of the derivative work right in copyright law in light of insights about the essence of creativity culled from cognitive psychology and genre theory, thus richly evoking the variegated junctures between critical analysis of copyright doctrine, creativity theory, and the relation between extra-legal theory and specifically legal theory and practice. Worthwhile reading for anyone engaged with copyright law, its justification, and its place and role in broader social and theoretical concerns."Abraham DrassinowerProfessor and Chair in the Legal, Ethical and Cultural Implications of Technological InnovationUniversity of Toronto Faculty of Law