Wednesday, September 17, 2008
Michal Shur-Ofry, Faculty of Laws, Hebrew University of Jerusalem, has published "The (Copyright) Law of Genre: A Network Perspective on Copyright Protection of Cultural Genres," in volume 60 of the Florida Entertainment Law Review (2008). Here is the abstract.
Copyright law has long been reluctant to protect cultural genres and their components. This is normally justified through familiar principles, such as lack of originality, failure to prove infringement or the principle regarding non-protection of ideas. This article argues that none of these explanations provides a comprehensive answer to copyright's treatment of cultural genres. Relying on Genre theory, Network theory and Semiotic analysis the article offers a network perspective on the intersection of genres and copyright. It argues that genres have important communicative function and constitute necessary tools in human interaction. It proposes to call these communicative attributes "network value", and demonstrates that network value constitutes a substantive theoretical justification for limiting copyright in cultural genres and their components. It further argues that network value analysis has both explanatory and normative consequences. It explains the narrower copyright protection afforded to genres and their components, and sheds light on other related copyright puzzles. In addition, it can provide clearer guidelines in designing the scope of copyright law and its application to cultural works.
Part I briefly describes the limited protection afforded to cultural genres and the prevailing justifications under current law. Part II substantiates the theoretical basis of the network perspective, and its application to the intersection of copyright and cultural genres. Part III briefly explores several potential implications of the network analysis, focusing particularly on the Scenes-a-Faire doctrine and the issue of television formats. Some concluding remarks follow.
Download the paper from SSRN here.