DOCSLIB.ORG

Originality in Copyright and the Debate on Protection of Traditional Knowledge: a View on Nigerian Law

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Originality in Copyright and the Debate on Protection of Traditional Knowledge: a View on Nigerian Law KIU Journal of Social Sciences KIU Journal of Social Sciences Copyright©2017 Kampala International University ISSN: 1996902-3; 3(1): 293–301 Originality in Copyright and the Debate on Protection of Traditional Knowledge: A View on Nigerian Law K. I. ADAM, I. A. YUSUF University of Ilorin, Nigeria 1. Introduction Copyright is perhaps the most popular and designed to protect an item fails to achieve its familiar branch of intellectual property law target, it should, at least, not become a tool of which is used for the protection of literary, oppression against such item. It thus becomes artistic, and dramatic achievements. Eligibility imperative that such a key principle should be to copyright protection rests mainly on the re-examined to safeguard the integrity of our requirement of originality which arguably is the copyright law. It is precisely that task that has main force in the creative process of all arts. been undertaken in this paper where the nature Ironically, this same condition has greatly of copyright and traditional knowledge is undermined the influence of copyright in so far considered to highlight the factors of as protection of traditional knowledge is inconsistency between the two systems. It concerned. For instance, it is generally believed further examines how the technical manipulation that copyright cannot protect traditional of originality has while seeking to achieve knowledge because the latter lacks originality. copyright objectives ended up promoting Surprisingly, materials or products derived from predatory activities against traditional traditional knowledge have overtime received knowledge which should ordinarily be its copyright protection through their collection or candidate for protection. The paper therefore compilation into books or other media of argues that the system could be strengthened to fixation. It is for this reason that some have at least offer negative protection of traditional heavily criticized the originality requirement as knowledge where the element of innovation or ineffectual or a mere subterfuge, since it fails to creativity is read into its test of originality. The stand against copyright protection of mere next section examines the general notion of collection of information or ideas which were protection of intangible materials and its originally generated by persons other than the relevance to traditional knowledge. collectors. 2. The General Notion of Protection of The truth is that the technical connotation of Intangible Property “originality” is not consistent with ordinary thinking whereby creativity or innovation is an Traditional knowledge is a form of intangible integral part of an original work. This calls the asset in that it lacks physical substance and fairness of the copyright system into question. shares the general characteristics of knowledge The point been made is that where a principle which, as Jefferson noted, is an iconic non- 293 KIU Journal of Social Sciences rivalrous public good – “he who receives an idea protection is fluid and the same legal tools can from me …. as he who lights a taper at mine, be applied to achieve the different objectives. receives light without darkening me” This The copyright system, being property-based, feature of an intangible asset necessitated the tends largely towards the positive protection intervention by law to create statutory property regime and therefore insists that its subjects from the intangible sources as a form of must fulfil established standard, including protection, and it is precisely that intervention requirement of originality for copyright, which, that is otherwise known as the intellectual as shown in the next section, is obviously hard property protection. for a local initiative as traditional knowledge to fulfil. Protection by intellectual property could take two different dimensions: either positive or 3. Nature of Traditional Knowledge negative (defensive) protection. Positive protection involves acquisition of property rights The term “traditional knowledge” refers to either through IPRs or other rights provided by a knowledge, possessed by local or indigenous legal mechanism created to protect people, in one or more societies and in one form developments of arts and science. For example, or another, including art, dance and music, a special legal provision vesting in the right- medicines and folk remedies, folk culture, holder the right to grant or withhold consent to biodiversity, knowledge and protection of plant access and use a protected subject or to claim varieties, handicrafts, designs and literature. entitlement for use of such subject qualifies as Thus, as will be seen later, several traditional positive protection. A common example of knowledge products are in the nature of works positive protection can be found in the various protected by copyright. The term “traditional” intellectual property devices such copyright, used in describing this knowledge does not patent and trademark which are based on imply that this knowledge is old or unscientific established standard of protection. There is also in nature, but that it is “tradition-based.” It is a special kind of intellectual property protection “traditional” because it is created in a manner commonly referred to as sui generis protection. that reflects the traditions of the communities, This can either take the form of property regime, therefore not relating to the nature of the liability regime or a combined system containing knowledge itself, but to the way in which that the elements of both. A property regime vests knowledge is created, preserved and exclusive rights in the owner, and fundamental disseminated. aspects of the rights are the rights to authorise, refuse, and set conditions of access to the target Traditional knowledge is collective in nature and property, while, a liability regime allows a third is often considered the property of an entire party to make use of the protected subject community, and not belonging to any single without fulfilling any entry requirements subject individual within the community. It is to liability to pay compensation after use. transmitted through specific cultural and traditional information exchange mechanisms, On the other hand, defensive protections (also for example, it is maintained and transmitted known as negative sui generis protections) are orally through elders or specialists (breeders, legal devices designed to prevent wrongful healers, etc.), and often to only a select few appropriation or unauthorised exploitation of people within a community. protected subject regardless of whether such consists of undisclosed information or publicly It is precisely some of these features of available knowledge. In the strict sense, this traditional knowledge that have been found to form of protection has a negative connotation work against its copyright protection. As will be and does not confer any entitlement but this is seen in the next section of this paper, the not always the case. In practice, the boundary features of traditional knowledge seem between positive and defensive forms of incompatible or sharply contrast with the 294 KIU Journal of Social Sciences principles and framework of copyright musical and dramatic works to copyright protection. protection is anchored on twin requirements that the production must be original and must have 4. Nature of Copyright been fixed in a definite medium of expression. Under the Nigerian Copyright Act, for instance, Copyright is one of the legal devices designed to a work is required to have an original character protect intangible materials. It protects a list of but no definition is provided for the term works including literary, artistic and musical original. What then is originality? works. However, the Nigerian Copyright Act also contains provisions for live performance of 4.2 Concept of Originality such intangible materials when they are not Literally, originality is defined as “the ability to qualified as works. think independently and creatively” or “the Generally, the author is the first owner of quality of being novel or unusual”, which copyright in a work unless it was made pursuant suggests a connection between originality and to a contract or under the author‟s employment, the concept of “creativity”. The terms in which case the owner is the person who “creativity” and “unusualness” are both abstract contracted the author or his employer as the case for a legal definition and subjective for may be. However, parties are entitled to choose determining the scope of copyright protection. the terms of their own agreement concerning Thus, the courts have had, over the years, to ownership or such transfer of copyright. A grapple with the task of providing an objective copyright owner has exclusive right to do such definition for the term “originality”. things including the reproduction of the work in any material form; communication to the public; 4.3 Judicial Approaches to Originality the performance, showing or playing to the Two main judicial approaches have evolved public; the distribution of copies to the public by globally in the conception and application of the sale or other transfer of ownership and doctrine of “originality” in copyright context, commercial rental to the public. The right of the namely the British-American model, and the copyright owner is infringed when someone civil law approach. However, the approach of exercises any of the rights reserved for the the European Court of Justice as well as the copyright
Load more

Recommended publications
  • Copyright OUTLINE
    COPYRIGHT – PROF. REESE, SPRING 2009 • INTRODUCTION o Characteristics . Public goods, nonexcludability and nonrivalrousness . Intangible gooDs o Concerns . Financial benefit (incentives to create) . Attribution . Accuracy . Control . Privacy o ProbleMs . Creates Monopoly . Less access/higher costs • SUBJECT MATTER o Constitutional . Federal, not patchwork of state protections . Restrictions on Congress • Limited time for exclusive rights • Who can get protection • Purpose (science/useful arts) • Subject Matter: writings of authors . Note: just because Constitution perMits Congress to grant copyright protection, it Does not Mean that Congress HAS to o Subject Matter BroaDly DefineD . Author = originator of work . Writing = physical forM expressing iDeas of the MinD . ProMote Progress includes works for coMMercial purpose . Originality: intellectual proDuction, though, or Mental conception, not a qualitative juDgMent of artistic value o Courts on subject Matter: ORIGINALITY . Burrow-Giles Lithographic Co. v. Sarony (1884): Oscar WilDe photo • ∂’s challenge: photos are not “authorship” • HolDing: photographs are writings—represent “original intellectual conceptions of the author” o Early Congress protecteD Maps/charts, recreations of the real worlD o Define writings: “all forms by which the ideas in the mind of the author are given visible expression” o Reject categorical exclusion of photos: originality thresholD Met . Goldstein v. California (1973): doesn’t have to be visible • Writings incluDes physical expression of sounDs, any physical rendering . Bleistein v. Donaldson Lithographic (1903): circus aDvertiseMents • ∂’s challenge, drawn from life to advertise • HolDing: low threshold of originality o Shows author’s personality, even in unpretentious pictures o ComMercial purpose does not reMove from “useful arts”—value because of consuMer DeManD for copies o Ends lower court trenD aligning copyright with fine arts o Court does not judge artistic quality o Statutory Subject Matter: §102 .
    [Show full text]
  • The Adventure of the Shrinking Public Domain
    ROSENBLATT_FINAL (DO NOT DELETE) 2/12/2015 1:10 PM THE ADVENTURE OF THE SHRINKING PUBLIC DOMAIN ELIZABETH L. ROSENBLATT* Several scholars have explored the boundaries of intellectual property protection for literary characters. Using as a case study the history of intellectual property treatment of Arthur Conan Doyle’s fictional character Sherlock Holmes, this Article builds on that scholarship, with special attention to characters that appear in multiple works over time, and to the influences of formal and informal law on the entry of literary characters into the public domain. While copyright protects works of authorship only for a limited time, copyright holders have sought to slow the entry of characters into the public domain, relying on trademark law, risk aversion, uncertainty aversion, legal ambiguity, and other formal and informal mechanisms to control the use of such characters long after copyright protection has arguably expired. This raises questions regarding the true boundaries of the public domain and the effects of non-copyright influences in restricting cultural expression. This Article addresses these questions and suggests an examination and reinterpretation of current copyright and trademark doctrine to protect the public domain from formal and informal encroachment. * Associate Professor and Director, Center for Intellectual Property Law, Whittier Law School. The author is Legal Chair of the Organization for Transformative Works, a lifelong Sherlock Holmes enthusiast, and a pro bono consultant on behalf of Leslie Klinger in litigation discussed in this Article. I would like to thank Leslie Klinger, Jonathan Kirsch, Hayley Hughes, Hon. Andrew Peck, and Albert and Julia Rosenblatt for their contributions to the historical research contained in this Article.
    [Show full text]
  • EU Harmonisation of the Copyright Originality Criterion (Pdf)
    NEWS June 2012 EU harmonisation of the copyright originality criterion As a consequence of a number of copyright rulings from the CJEU, the Swedish threshold of originality requirement is being superseded by an EU originality criterion. In this article, Henrik Bengtsson, IP expert at Delphi in Stockholm, reports on the development and the possible impact on the harmonisation of Swedish copyright law. Less than two years ago, the Swedish Supreme Court rendered its judgment in the Mini Maglite case (NJA 2009 s 159) and ruled that the Mini Maglite flashlight was copyright protected. The Mini Maglite case concerned the pre-requisites under which a work of applied art meets the threshold of originality. The Supreme Court’s view on the threshold of originality concept vis-à-vis “the author’s own intellectual creation” One of the legal issues in the Mini Maglite case was whether the judgment should be based on a Swedish originality requirement or on the EU originality criterion enshrined in the EU copyright directives. The Supreme Court found that the EU harmonisation of copyright law was limited to computer programs, photography and database directives, and was not applicable to industrial designs; “Under two EC directives, computer programs and photographs could be covered by copyright protection, inter alia, on the condition that the work is original in the sense that it is the author’s own intellectual creation; it is added that no other tests shall be applied as regards the right to protection (Directive 91/250/EEC and Directive 93/98/ EEC). A directive regarding legal protection for databases has been drafted in a similar way in this respect (96/9/EC).
    [Show full text]
  • 1 Quality, Merit, Aesthetics and Purpose: an Inquiry Into EU
    This is a preprint of an article published in the RIDA - Revue Internationale du Droit d’Auteur, no. 236 (April 2013), pp. 100-295, with a full-text translation in French by Margaret PLATT-HOMMEL and in Spanish by Antonio MUÑOZ. Quality, merit, aesthetics and purpose: An inquiry into EU copyright law’s eschewal of other criteria than originality Stef van Gompel & Erlend Lavik* One of the most debated topics in European copyright law today is the harmonization of the concept of originality and the subject-matter of copyright by the Court of Justice of the EU (CJEU). Up until the Infopaq I decision of 2009, in which it ruled that copyright subsists in subject-matter ‘which is original in the sense that it is its author’s own intellectual creation’,1 computer programs, photographs and databases were the only three types of works for which the originality test was explicitly harmonized at the EU level.2 Beyond these cases, it was thought that ‘Member States remain free to determine what level of originality a work must possess for granting it copyright protection’.3 The CJEU nonetheless extended the application of the criterion of the author’s own intellectual creation to other types of works, including newspaper articles (Infopaq I); graphic user interfaces of computer programs (BSA); (unregistered) industrial design (Flos); works exploited within the framework of television broadcasts, such as opening video sequences, anthems, pre-recorded films and graphics (Football Association Premier League); and programming languages and the format of data * Stef van Gompel is post-doc researcher at the Institute for Information Law (IViR) of the University of Amsterdam; Erlend Lavik is post-doc researcher at the Department of Information Science and Media Studies (Infomedia) of the University of Bergen.
    [Show full text]
  • Canadian Law Library Review Revue Canadienne Des Bibliothèques De Droit
    Volume/Tome 38 (2013) No. 2 ISSN 1180-176X CANADIAN LAW LIBRARY REVIEW REVUE CANADIENNE DES BIBLIOTHÈQUES DE DROIT Canadian Law Library Review Revue canadienne des bibilothèques de droit is published by est publié par CANADIAN ASSOCIATION OF LAW LIBRARIES ASSOCIATION CANADIENNE DES BIBLIOTHÈQUES DE DROIT CONTENTS SOMMAIRE EDITORIAL BOARD/COMITÉ DE RÉDACTION 2013 2013 EDITOR/RÉDACTRICE EN CHEF NANCY MCCORMACK Canadian Law Library Review Revue canadienne des bibliothèques de droit Librarian & Associate Professor of Law Volume 38, No. 2 Tome 38 No. 2 Lederman Law Library Queen’s University FROM THE EDITOR DE LA RÉDACTRICE 59 Kingston, ON K7L 3N6 Telephone: (613) 533-2465 PRESIDENT’S LETTER LE MOT DE LA PRÉSIDENTE 63 E-mail: [email protected] ORAL INTERVIEWS WITH ENTREVUES AVEC LES 68 ASSOCIATE EDITOR/RÉDACTRICE ADJOINTE PAST PRESIDENTS OF CALL ANCIENS PRÉSIDENTS DE L’ACBD WENDY HEARDER-MoAN Viola Bird 68 WHM Library Services 3039 Britannia Rd. W. By Heather Wylie Burlington, ON L7M 0R7 Reports RAPPORTS 70 Telephone: (905) 335-4055 E-mail: [email protected] Law Via the Internet 2012: Report on the Conference 70 By Yemisi Dina FEATURES/ARTICLES DE FOND AMY KAUFMAN FEATURE ARTICLES ARTICLES DE FOND 74 Head, Law Library Lederman Law Library Edited by Amy Kaufman and Leslie Taylor Queen’s University The Canadian Association of Law Libraries/Association Canadienne Des Bibliothèques De Droit: Kingston, ON K7L 3N6 Telephone: (613) 533-2843 A Continuing History, 1988-2012. Part I: Governance, Structure, and Administration 74 E-mail: [email protected] By Janet M. Moss LESLIE TaylOR R EVIEWS RECENSIONS 89 Reference/Technical Services Librarian Lederman Law Library Edited by Erica Anderson and Susan Barker Queen’s University Administrative Law in Canada.
    [Show full text]
  • AMSTER ROTHSTEIN & EBENSTEIN LLP Failure to Plead Originality Of
    AMSTER ROTHSTEIN & EBENSTEIN LLP Intellectual Property Law published: Journal of Intellectual Property Law and Practice, January 8, 2010 Failure to Plead Originality of Copyright Design is Fatal to Complaint By Charles R. Macedo, Amster, Rothstein & Ebenstein LLP LA Printex Industries, Inc. v Forever 21 Inc., No. 09-3382, US District Court for the Central District of California, 27 October 2009. Abstract A copyright infringement claim must plead the originality of the plaintiff’s work if it is to state a cause of action. Legal context Copyright, as the name implies, provides the owner of a copyright the ability to control who has the ‘right’ to ‘copy’ the copyright material. Unlike patent law, in order to be qualified for copyright protection in the USA, the material need not be novel (i.e. new compared to that which existed before), it merely needs to be original. Under US law, the threshold level of originality to obtain copyright protection is ‘extremely low’. In LA Printex Industries, Inc. v Forever 21 Inc., the US District Court for the Central District of California explored the parameters of the minimal level of originality that is necessary to be entitled to copyright protection, and the elements necessary to plead such a cause of action. Facts LA Printex creates graphic artworks for use on textiles, which are sold primarily in the fashion industry. Forever 21 is a well-known retailer of women’s clothing. LA Printex is the owner of a registered US copyright for four fabric designs, including a design for ‘two dimensional graphic artwork with stylized nautical anchors as its primary elements’.
    [Show full text]
  • Copyright Problems in Post-Modern Art
    DePaul Journal of Art, Technology & Intellectual Property Law Volume 5 Issue 1 Winter 1994/Spring 1995 Article 5 Copyright Problems in Post-Modern Art Lori Petruzzelli Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Lori Petruzzelli, Copyright Problems in Post-Modern Art, 5 DePaul J. Art, Tech. & Intell. Prop. L. 115 (1995) Available at: https://via.library.depaul.edu/jatip/vol5/iss1/5 This Case Notes and Comments is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Petruzzelli: Copyright Problems in Post-Modern Art COPYRIGHT PROBLEMS IN POST-MODERN ART Lori Petruzzellr I. INTRODUCTION Copyright law establishes a framework to protect artistic creation by providing a system of economic incentives. By granting an artist property rights in her work, the Copyright Act fosters the production of a wide array of creative works from many different genres.' To this end, the Copyright Act does not define art, rather it draws lines and sets forth flexible categories of works which are eligible for protection. There are no qualitative tests, simply a low threshold of origi- nality and a requirement that the work be an expression, not an idea.2 Even with this broad framework and flexible approach, the Copyright Act fails to extend protection to many movements within post-modem art. Post-modemism rebels against the traditional norms of originality, ownership, and expression that define copyright protection.
    [Show full text]
  • In Copyright Law
    Fordham Law Review Volume 74 Issue 2 Article 10 2005 Size Matters (Or Should) in Copyright Law Justin Hughes Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Justin Hughes, Size Matters (Or Should) in Copyright Law , 74 Fordham L. Rev. 575 (2005). Available at: https://ir.lawnet.fordham.edu/flr/vol74/iss2/10 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Size Matters (Or Should) in Copyright Law Cover Page Footnote Associate Professor and Director, Intellectual Property Law Program, Cardozo Law School, New York. The author has profited from the readings of different versions or sections of this Article provided by Barton Beebe, Clyde Spillenger, Jessica Litman, David Nimmer, and Michael Carroll. Thanks also to Nicholas Preston, Brisette Gantt, and Xiaomin Zhang for research assistance. The remaining errors are the exclusive intellectual property of the author. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol74/iss2/10 SIZE MATTERS (OR SHOULD) IN COPYRIGHT LAW Justin Hughes* INTRODUCTION In the spring of 2001, there was a poster in the Paris Metro that was surely a sign of the times in intellectual property. It was one of a series sponsored by the transit authorities, each poster with a quotation from a famous person.
    [Show full text]
  • Considering the Quantum of Originality Needed to Attain Copyright Protection in a Derivative Work Steven S
    Santa Clara Law Review Volume 40 | Number 2 Article 1 1-1-2000 Deriving Orginality in Derivative Works: Considering the Quantum of Originality Needed to Attain Copyright Protection in a Derivative Work Steven S. Boyd Follow this and additional works at: http://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation Steven S. Boyd, Deriving Orginality in Derivative Works: Considering the Quantum of Originality Needed to Attain Copyright Protection in a Derivative Work, 40 Santa Clara L. Rev. 325 (2000). Available at: http://digitalcommons.law.scu.edu/lawreview/vol40/iss2/1 This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. ARTICLES DERIVING ORIGINALITY IN DERIVATIVE WORKS: CONSIDERING THE QUANTUM OF ORIGINALITY NEEDED TO ATTAIN COPYRIGHT PROTECTION IN A DERIVATIVE WORK Steven S. Boyd* "[T]here is no new thing under the sun."' I. INTRODUCTION Innovations in science and technology constantly expand the concept of creative expression, yielding media never be- fore contemplated.2 These novel and diverse forms of expres- sion continue to challenge the boundaries of the existing ru- bric of copyright laws by forcing jurists and scholars to reconsider fundamental concepts of intellectual property pro- tection, such as originality in copyright law, in the context of cutting edge media.3 At times, the legal community must * Attorney of Law, Locke Liddell & Sapp LLP, Houston, Texas.
    [Show full text]
  • ALAI 2011 – Dublin Congress
    1 / 25 ALAI 2011 – Dublin Congress Questionnaire – Boundaries and Interfaces Answers of the German Group of ALAI by: Matthias Leistner, Alexander Koof, Manuel Kleinemenke & Stefan Koroch1 1. The Subject-Matter of Protection – Works 1.1 How do your legislators or case law define a literary work? In particular, how is speech protected? Is ex tempore speech a literary work and what are the conditions for protection? Under German law, literary works in the form of works of language are all those personal intellectual creations that express intellectual content by means of language.2 The creator of the work must express a verbal or intellectual content or a feeling.3 The personal intellectual creation can be embodied in the form or in the concrete content, thus by the selection or arrangement of the material.4 The human creator must individually exert his expressive choice in creating the object. The threshold of originality is generally rather low with respect to literary works.5 However, this might be different with regard to practical or scientific texts where the threshold is higher because the content as such will typically be unprotected in these fields, and only the structure of the text (the concrete form of shaping this content in an argument) can express the necessary individuality. According to Article 2(1) No. 1 Copyright Act, works of language can be writings or speeches. Writings express the intellectual content by characters or different signs.6 1 Dr. Matthias Leistner, LL.M. (Cambridge) holds the Chair for Civil Law, Intellectual Property and Competition Law and is Director of the Institute for Commercial and Economic Law at the University of Bonn.
    [Show full text]
  • IP and the Internet Business Of
    Switzerland Martin Steiger Steiger Legal 1. Copyright, database rights and design rights 1.1 Overview Internet content can be protected by copyright law in Switzerland; however, there are almost no specific provisions for internet content. In summary, copyright law in Switzerland covers two objects of protection: works (ie, creations of the mind that possess an individual character and pass the threshold of originality); and neighbouring rights for certain content-related activities and results of such activities without any further threshold that must be passed (ie, activities and results of activities by broadcasters, performers and other relevant parties in relation to content with and without copyright protection). Works in Swiss copyright law are legally defined as literary and artistic creations of the mind – irrespective of their declared purpose or economic value – that possess an individual character (ie, that are original). Originality is used as a threshold for copyright protection with the statistical uniqueness of a work often used as a practical test. Any content that passes the threshold of originality – including internet content – is covered by copyright protection in Switzerland. Trivial creations on the other hand remain in the public domain. In practice, the threshold is low with higher requirements only for certain categories of works. For visual works for example, a distinction is made between copyright-protected photographs and snapshots without copyright protection; however, even the case law thereto is inconsistent. As a rule of thumb in legal practice, internet content can be considered copyright protected under Swiss copyright law if the threshold of originality is not obviously missed or no copyright exemption applies.
    [Show full text]
  • Experimental Tests of Intellectual Property Laws' Creativity Thresholds
    BUCCAFUSCO.ONLINE2.DOCX (DO NOT DELETE) 6/28/14 5:37 PM Experimental Tests of Intellectual Property Laws’ Creativity Thresholds Christopher Buccafusco,* Zachary C. Burns,** Jeanne C. Fromer*** & Christopher Jon Sprigman**** Introduction In the United States, intellectual property (IP) law is intended to encourage the production of new creative works and inventions.1 Copyright and patent laws do this by providing qualifying authors and inventors with a bundle of exclusive rights relating to the use and development of their creations.2 Importantly, however, these fields differ greatly in the ways that they determine whether some new creation is sufficiently innovative to merit legal protection. Copyright law sets the creativity bar especially low for new works of authorship, whereas patent law demands that a putative inventor prove that her creation is highly innovative. Although this difference has been noted repeatedly in the past and explained as a matter of various differences between copyrightable and patentable subject matter (including differing goals of the two regimes),3 relatively little research has focused on whether the different IP thresholds affect the incentives and behavior of creators. * Associate Professor and Co-Director of the Center for Empirical Studies of Intellectual Property, IIT Chicago-Kent College of Law; Visiting Associate Professor, Benjamin N. Cardozo School of Law. ** Visiting Assistant Professor of Management & Organizations, Kellogg School of Management, Northwestern University. *** Professor of Law and Co-Director, Engelberg Center on Innovation Law & Policy, New York University School of Law. **** Professor of Law and Co-Director, Engelberg Center on Innovation Law & Policy, New York University School of Law. The authors gratefully acknowledge the research assistance of Eric Holmes, Garrett Jaeger, Amanda Levendowski, Amalia Sax-Bolder, Jackie Silverman, and Christoffer Stromstedt.
    [Show full text]