The Lessons of Living Gardens and Jewish Process Theology for Authorship and Moral Rights

This Article examines the issues of authorship, fixation, and moral rights through the lens of Jewish Process Theology. Jewish Process Theology is an application of Process Thought, which espouses a developmental and fluid perspective with respect to creation and creativity. This discipline offers important insights for how to shape and enforce copyright law. The issue of change and authorship is more important now than ever before given how the digital age is revolutionizing the way the world thinks about authorship. By incorrectly maintaining that a living garden is not capable of copyright protection since it is unfixed, changeable, and partially the product of nonhuman authorship, a recent decision by the U.S. Court of Appeals for the Seventh Circuit illustrates the need for interdisciplinary guidance with respect to copyright law and policy

Copyright and the Moral Right: Is an American Marriage Possible?

The 1976 Copyright Act (the 1976 Act) embodies the most extensive reforms in the history of our nation\u27s copyright laws. One proposed reform that is noticeably absent from the statutory scheme, however, is the explicit adoption of protections for the personal rights of creators with respect to their works. Instead,the 1976 Act continues this country\u27s tradition of safeguarding only the pecuniary rights of a copyright owner. By assuring the copyright owner the exclusive rights to reproduce and distribute the original work, to prepare derivative works, and to perform and display publicly certain types of copyrighted works, the 1976 Act focuses on the inherent economic value of a copyright. Consequently, the primary objective of our copyright law is to ensure the copyright owner\u27s receipt of all financial rewards to which he is entitled, under the 1976 Act, by virtue of ownership. Because copyright law protects works that are the product of the creator\u27s mind, heart, and soul, a degree of protection in addition to that which guarantees financial returns is warranted. The 1976 Act does not purport to protect the creator, but rather the copyright owner. Nevertheless, a creator, regardless of whether he holds the copyright in his work, has a personal interest in preserving the artistic integrity of his work and compelling recognition for his authorship. In many European and Third World nations personal rights are protected by a legal doctrine commonly known as the moral right.\u27 In this country courts wishing to recognize a creator\u27s personality interests are forced to rely upon other established legal theories such as unfair competition law, contract law, defamation, invasion of privacy, and even copyright law to redress grievances implicating moral rights

Living Gardens, Living Art, Living Tradition

Copyright protection in the United States begins from the moment of a work’s “creation.”1 Although this rule is codified in the statute, the underlying issues of how and when “creation” occurs are rarely, if ever, explored. Under the current law, as soon as an author creates a copyrightable work of authorship and fixes that work in a tangible medium of expression, the work is entitled to protection. This formulation ignores the critical issues of whether fluid works of authorship that are constantly evolving can be subject to copyright protection and, if so, what is the scope of such protection. Not much has been said or written about how copyright should address such fluid works of authorship that are, by their very essence, continually in progress or otherwise subject to change on an ongoing basis. This dearth of discussion is particularly surprising given that law professors spend a majority of their time writing articles and books that are constantly in a state of flux. Even after publication, many would like to take a crack at revising prior works, and some actually do so in the form of sequel publications! This Essay initially discusses the protection of fluid works from the standpoint of copyright law in the United States. By way of comparison, this Essay then examines the philosophy of human creativity deriving from the Jewish tradition. It argues that this ancient yet living tradition can inform our copyright policy concerning how we define eligible works of authorship and determine their appropriate scope of protection