Originality

47 Pages Posted: 18 Mar 2009 Last revised: 25 Sep 2009

Gideon Parchomovsky

University of Pennsylvania Law School; Bar Ilan University - Faculty of Law

Alex Stein

Brooklyn Law School

Date Written: September 2009

Abstract

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

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

Gideon Parchomovsky (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-1603 (Phone)

Bar Ilan University - Faculty of Law ( email )

Ramat Gan 52900
Israel
972-2-5317078 (Phone)

Alex Stein

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-0615 (Phone)

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