A Genre Theory of Copyright

71 Pages Posted: 16 May 2016 Last revised: 26 May 2016

See all articles by Omri Rachum-Twaig

Omri Rachum-Twaig

Tel Aviv University - Buchmann Faculty of Law ; Federman Cyber Security Research Center, Hebrew University of Jerusalem

Date Written: May 14, 2016

Abstract

One of copyright law's primary goals is the promotion of progress and development in arts and the enrichment of the world of expressions. Economic analysis is the predominant theory used to justify current copyright doctrines and to analyze the possible ways to accomplish copyright law's goals. However, economic analysis, as well as other theories, sometimes fail to account for existing copyright doctrines and to justify new ones due to lack of empirical data. In the field of literary theory, we find theories that deal with genre and seek to explain, among other things, how art develops and how meaningful artistic products are created. This Article offers a genre theory of copyright and examines if and to what extent the legal norm of copyright law, which governs the world of creativity, fits genre theories. It reviews several main copyright doctrines such as the idea/expression dichotomy, the scènes à faire doctrine, fair use, and the right to make derivative works. This Article shows that while many copyright doctrines could be explained and justified under genre theories, the right to make derivative work does not fit this normative source and should be adapted.

Keywords: Copyright, Genre, Derivative Works, Idea/Expression, Scenes a Faire, Originality, Creativity, Detective Story

Suggested Citation

Rachum-Twaig, Omri, A Genre Theory of Copyright (May 14, 2016). Santa Clara Computer and High Technology Law Journal, Vol. 33, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2779913

Omri Rachum-Twaig (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv, 69978
Israel

Federman Cyber Security Research Center, Hebrew University of Jerusalem ( email )

Mount Scopus
Jerusalem, Jerusalem 91905
Israel

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