Towards a Relational Theory of Copyright Law
Chapter 5: The Evolution of Originality: The Author’s Right and the Public Interest
5.1 INTRODUCTION I argued in Chapter 4 that the justification for copyright law should be found in the relationship between the society and the work. Building on Chapter 3, then, my argument is that the legal relationship between the author and her work is a means by which to achieve social goals. This does not remove the author and her interests from the copyright equation, but rather integrates the interests of a relational author into our conception of copyright’s social goals. The public interest that justifies copyright embraces the value of authorship to individual authors, not as Lockean labourers, but as socially situated human beings engaged in a constitutive cultural dialogue. In Chapter 5, the argument turns towards the legal relationship between the author and her work, and in particular, that which is required to bring it into being – the creation of original expression. The moral relation (society/work) used to justify copyright is logically independent from the legal relation (author/work) established in its name.1 However, any incongruence between these two relations casts doubt on the justifiability of the legal construct. The originality doctrine at the core of copyright law has, for many years, been defined and developed in a way that is congruent with a system justified in terms of the moral relation between author and work. In the discussion that follows, I will suggest ways in which the doctrine can be reconceptualised and redefined to better reflect the social values that justify copyright and so to better advance its...
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