University of Pennsylvania Law School; Bar Ilan University - Faculty of Law
Yeshiva University - Benjamin N. Cardozo School of Law
Virginia Law Review, Vol. 95, 2009
Cardozo Legal Studies Research Paper No. 272
U of Penn, Inst for Law & Econ Research Paper No. 09-10
In this Essay we introduce a model of copyright law that calibrates authors' rights and liabilities to the level of originality in their works. We advocate this model as a substitute for the extant regime that unjustly and inefficiently grants equal protection to all works satisfying the "modicum of creativity" standard. Under our model, highly original works will receive enhanced protection and their authors will also be sheltered from suits by owners of preexisting works. Conversely, authors of less original works will receive diminished protection and incur greater exposure to copyright liability. We operationalize this proposal by designing separate rules for highly original works, for works exhibiting average originality, and for works that are minimally original or unoriginal. We illustrate our rules' application by showing how they could have altered court decisions in classic copyright cases in a socially beneficial way.
Number of Pages in PDF File: 47
Keywords: copyright, intellectual property law, novelty, efficiency, modicum of creativity, scope of protection, doctrine of inequivalents, added value doctrine, sameness rule, overbreadth
JEL Classification: K11, O31, O34
Date posted: March 18, 2009 ; Last revised: September 25, 2009
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