Book review: Copyright law and derivative works

There is nothing new under the sun”. In copyright law, this declaration from the Book of Ecclesiastes translates into an awkward tension between the need to limit slavish copying (to prevent free-riding), on the one hand, and the need to allow a degree of derivative creation, on the other (to avoid stifling creativity). But where do we draw the line? This is the fraught question that Omri Rachum-Twaig addresses in his recent book, “Copyright law and derivative works”.

The author revisits the right to make derivative works through the lenses of cognitive psychology and genre theory, both of which study creativity. The author argues that copyright law has much to learn from these two disciplines, both in the way that they understand creativity and how to best encourage it.

"Why these two fields", you ask? Perhaps, according to the author, it is because each of them investigates a different aspect of creativity: cognitive psychology focuses on creativity as a process, whilst genre theory centres on the product of the creative process, i.e. the work. (‘Genre theory’ (or ‘genre theories’) stems from the field of literary theory, studying the formation of ‘genres’ of creative expression, “explain[ing] among other things how art develops and how meaning artistic products are created” (p. 57)). The author contrasts the tenets of cognitive psychology and genre theory with the legal doctrines of US copyright law with respect to the right of making a derivative work. (NB: The analysis also references aspects of English copyright law in the latter part of the work regarding the evolution of the reproduction and derivative rights).  

Unsurprisingly, Rachum-Twaig concludes that there is a significant degree of mismatch between copyright, cognitive psychology and genre theory. Nevertheless, and more interesting to readers, the author uncovers elements of overlap between them, confirming that the comparison with these disciplines is worth pursuing.

Derivative cat?
Catwoman by J Duffy, J Balent & D Giordano
Chapter 1 gives a helpful outline of the main theories of cognitive psychology as it relates to the study of creativity. It is clear from Rachum-Twaig’s account that ‘cognitive psychology’ is an umbrella term that covers a range of different [diverging?] takes on how the creative process is best defined and stimulated. This chapter provides a useful summary of key studies and theories in cognitive psychology.

Still, from the chapters of the book that follow, the real star of this show is genre theory. It seems that the comparison between copyright and genre theory is more productive in re-thinking the concept of a derivative work. In Chapter 2, the author explains that the crux of genre theory rests on the idea that authors need ‘building blocks’ [sounds familiar?] to create. Genre theory recognises that such building blocks often come in the form of constraints or limitations, which may seem paradoxical or counter-intuitive. 

Taken together, these conventions or rules form what we identify to be genres of artistic creation (e.g. science fiction writing, poetry, detective, etc.). According to genre theory, these building blocks are essential to stimulate authors’ creativity but also to give the audience a framework within which to make sense of the work. From this angle, the building blocks, or constraints, which form a ‘genre’ serving two purposes: enabling or encouraging the author’s creativity and enabling the audience’s reception of the work.

But how much of genre theory chimes with copyright law doctrines? The author’s conclusion is that there a good level of overlap between genre theory’s definition of ‘building blocks’ and what copyright law regards as creative expressions eligible to protection. This conclusion is reached on the basis of rules pertinent to the idea/expression dichotomy, the scène à faire and the fair use doctrine. What the author identifies as missing from the realm of copyright is the importance that genre theory attributes to derivative creativity, something which copyright seems to overlook. For this reason, Rachum-Twaig concludes that “the right to make derivative works as a legal norm does not match the sociological-philosophical understanding of creativity and should be scrutinized and re-evaluated” (p. 82). The author writes:
Showing a match between genre theories and copyright law would validate current legal rules, as they adequately reflex extra-legal approaches to the enrichment of the creative world/. If, however, there is mismatch between some copyright doctrines and genre theories, then there is reason to re-examine these doctrines.
[T]o the extent that genre theories explain, among other things, the important and significant conditions for the enrichment of the creative world, and to the extent that copyright law aims at such enrichment, I believe any gap between legal rules and extra-legal understanding of the creative world should be bridged.

In the author’s view, copyright law can learn from genre theories to achieve a better definition of the right to make derivative works, so as to give derivative works the place they deserve in the framework of copyright. Rachum-Twaig argues that there should be no overlap between creative (read – useful, productive) derivative works and infringement of the reproduction right. The book puts forward that genre theory can assist in drawing the line between derivative work and infringement.

What would this look like in practice?  Here is the author's proposed revision to copyright law that would take into account the tenets of the theories mentioned above (Chapter 5).

First, the law needs to adopt a new definition for ‘derivative work’, which should feature three cumulative characteristics (p. 153):

(1)  a derivative work must add a substantial original contribution to the work it re-uses;

(2)  taken expression must constitute an “inseparable part” of the derivative work (principle of inseparability);

(3) taken expression cannot “be substituted with a different existing non-protected expression” without affecting, or “undermining the purpose”, of the derivative work (principle of non-fungibility).

However, this revision of the definition of a derivative work alone would not suffice, according to Rachum-Twaig. It would work if it came with a non-exhaustive statutory list of examples, to illustrate common occurrences of derivative works, such as: translations, sequels and prequels, abridgments, improvements of works, disassembly and reconstruction of works (p. 154-6).

Another key part of the book’s proposal is to reform remedies to make sure they encourage the making of derivative works rather than inhibiting them. According to the author, the most promising avenue for reform on this point is compulsory licensing for derivative works, similar to what already exists in music for the production of cover songs in some countries (p. 167). The maker of a derivative work, as defined above, would be able to legally make and distribute his/her work, thanks to the compulsory licensing scheme, but would also be bound to remunerate the author of the pre-existing work on the basis of an appropriate royalty rate.

This book will be useful to researchers and students interested in the concept of derivative works. The author offers a refreshing perspective on this question by pursuing a methodological approach that does not apologize for not using economics. As the author rightly points out at the onset of his analysis, there are things that economic perspectives, however useful they may be, simply cannot address (p. 58). Defining what the appropriate definition for ‘derivative works’ or ‘derivative rights’ might, is, or should be, under copyright law, one of them.

Book review: Copyright law and derivative works Book review: Copyright law and derivative works Reviewed by Mathilde Pavis on Friday, December 07, 2018 Rating: 5

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