A Genre Theory of Copyright
71 Pages Posted: 16 May 2016 Last revised: 26 May 2016
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
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