A Genre Theory of Copyright

A Genre Theory of Copyrigh

The Right-Based View of the Cathedral: Liability Rules and Corrective Justice

In their celebrated paper, Calabresi and Melamed offered a framework, often referred to as the ‘‘Cathedral’’ analysis, which explains when and why entitlements should be protected using two main sets of rules—property rules and liability rules. This framework is now widely used to explain some private law doctrines. However, cases that are easily explained as applications of liability rules are usually difficult to explain under the private law theory of correlative corrective justice. This is because the basic idea underlying corrective justice conflicts with the notion of rules that allow the nonconsensual property appropriation subject to compensation. In this Article, we attempt to reconcile liability rules under both Cathedral analysis and corrective justice. To do so, we discuss three positive examples of pure liability rules and analyze them under a new model that we believe is consistent with corrective justice. We then discuss the model’s further implications

Recreating Copyright: The Cognitive Process of Creation and Copyright Law

Copyright law reflects the intuitive understanding of creativity in the eyes of the law. This is because copyright law’s primary goal is to promote creativity. But is the legal understanding of creativity in line with cognitive psychology’s understanding of the creative process? This Article examines whether copyright law is harmonious with cognitive psychology’s understanding of creativity. Some scholars posit that theories of creativity fit well with current copyright law. In an article published in the Harvard Law Review, Joseph Fishman, a scholar studying the relationship between intellectual property and creativity, argued that, based upon some ac- counts of creativity, copyright law’s constraints on creativity actually push authors to create more original and creative works. This Article’s goal is to offer a broader assessment of creativity studies and to question whether they indeed fit with copyright law’s assumptions about creativity. This Article focuses on four main doctrines and concepts in copyright law. The first is the originality requirement in copyright law. The second is the concept of romantic authorship. The third is the idea/expression dichotomy that grants copyright protection to expressions and denies it to ideas. The fourth, which is closely related to the third, is the right to make derivative works. Copy- right law treats derivative works separately from original works and creates, to some extent, an identity between derivative works and reproductions. This attitude toward derivative works is not easy to justify. This Article examines whether the cognitive psychology of creativity is consonant with this legal doctrine and how to best apply cognitive psychology’s findings to the law. This Article is organized in the following manner: Part I discusses cognitive psychology’s relevance to the law. Part II presents the predominant theories of the process of creation and emphasizes the main characteristics of each group of theories. Part III divides the cognitive process of creation into two main stages: the stage of abstract unfocused ideation, and the stage of crystallization of a preliminary idea using previous domain-relevant knowledge and memory. Part IV uses theoretical, empirical and historical research to explain the role of prior domain-relevant knowledge and memory in the process of creation. Finally, Part V discusses how the discourse of cognitive psychology and the notions extracted from it may affect copyright law and, specifically, the right to make derivative works

Control is a Double-Edged Sword, and One Edge is Sharper

In her book Talent Wants to Be Free, Lobel suggests a new, behavioral-economics, paradigm to employment intellectual property (EIP) law. Lobel describes a dynamic model to EIP control mechanisms such as non-competes, trade secrets and invention assignments, and argues that loosening them will create positive externalities to employers that will make such a shift economically justified. I first discuss the content of the book and the journey Lobel is guiding us through trying to emphasize the important notions in it and taking them a step forward towards a more radical suggestion. I argue that the utilitarian debate over EIP controls cannot capture all the sensibilities of the legal aspects of human capital, and that a new legal framework should not be constructed according to an aggregate of positive and negative externalities, rather than upon moral/natural-law grounds that have an economic justification as well. I argue that although Lobel\u27s new model to EIP controls is very convincing and appealing to employers as well as to employees, there is a solid economical (as well as moral) ground for a dramatic change in the legal framework of EIP, regardless of the employers\u27 point of view. I examine this argument with a case study of the survival of the music industry albeit the turbulences it went through at the beginning of the technological era with the emergence of file sharing and other forms of piracy, and will present an economic model that supports the moral grounds for a legal paradigm shift