Monday, March 5, 2007
Olufunmilayo Arewa, Northwestern University School of Law, has published "The Freedom to Copy: Copyright, Borrowing, and Context," as Northwestern Public Law Research Paper 07-06. Here is the abstract.
Copyright law must recognize the fundamental importance of the freedom to copy. Copying is an important aspect of the creation of new works that needs greater acknowledgment in copyright theory. This is particularly significant since establishing incentives to create is a key normative goal of copyright law. As a result, determining what constitutes creative works that deserve copyright protection is central to copyright doctrine. Creativity in copyright is frequently characterized as not involving copying, which is typically thought to be antithetical to both originality and creativity. This stigmatization of copying, however, means that copyright theory cannot adequately account for the reality of copying of both ideas and expression in the creation of new works. This missing theoretical link has significant implications for copyright in practice. It results in divergent treatment of acts of creation in different contexts. The lack of legal analysis of the full range of creation and creativity is also a major reason why copyright theory often has such difficulty delineating what constitutes appropriate and inappropriate copying of existing works. In contrast to law, studies in literary criticism and musicology have examined the ways in which new works are created, giving attention to the ways in which new works derive from existing expression. Examination of theories of creation in such disciplines can lend insight into ways in which copyright theory can better conceptualize both copying and creation within copyright frameworks. Through the incorporation of more fully conceived notions about copying, copyright theory can better recognize both the fundamental importance of the freedom to copy as well as its limitations.
Download the entire paper from SSRN here.