47 Pages Posted: 18 Mar 2009 Last revised: 25 Sep 2009
Date Written: September 2009
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.
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
Suggested Citation: Suggested Citation
Parchomovsky, Gideon and Stein, Alex, Originality (September 2009). 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. Available at SSRN: https://ssrn.com/abstract=1361911