copyright law is not a central area of research for me, I have written
pieces on the copyrightability of facts and factual compilations.
Facts, 78 Indiana Law
article, which focuses on economic arguments, is the more
substantial of the two. I still like it a lot. I think I make a number
of original economic arguments and that my proposed approach to the
copyrightability of factual compilations (the "collective fact
approach") is more sensible, and more in keeping with fundamental
copyright principles, that the one Justice O'Connor uses in Feist
Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
I toss off quickly, but which I think could be explored more, is that
an explanatorily powerful
scientific theory like
Einstein's theory of relativity is not copyrightable because
unauthorized uses of the theory are complements, in the sense that they
increase its market value. Id. at 954-57. Einstein's theory would have
been worth little if it was undisseminated, because it is only through
acceptance that people have evidence that it is true. A similar
argument explains why new genres (such as the hard-boiled detective
uncopyrightable. A genre has value in part because it provides an
easily recognizable framework for readers. Unauthorized use therefore
increases the value of the new genre. I haven't seen this argument made
in print before.
article gets cited once and a while, mostly for my statement that
without protection for the character of Superman, people would create
pornographic films starring him and commercials in which he
endorses hemorrhoid creams, even though
these works have a negative effect on the value of other
actual or potential Superman-based works. The idea,
is not at all original to me, is that copyright protection can be
justified, not merely because it encourages the creation of new works,
because it encourages the efficient utilization of constituents of
already exist. I guess people cite my article when discussing this idea
because the image of Superman in a pornographic film is just too hard
Fallacies about Copyrighting Factual
in Robert Brauneis (ed.), Intellectual Property Protection of
Copyright and its Alternatives 169-204 (Edward Elgar Press 2009)
book chapter restates the argument of the Indiana piece, with less
economics and more on copyright doctrine.
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