Wednesday, 20 February 2019

Book review: Copyright Law and Derivative Works by Omri Rachum-Twaig

Calling a work "derivative" is not a compliment, but there has been a tendency (since at least the Gowers Review) to consider the way that copyright laws treat derivative works as too restrictive. The author's starting point is the proposition that copyright regulates creativity: indeed, "regulating creativity" appears as a sub-title on the front cover. It seems to me that exploring creativity through the prism of derivative works is the wrong starting point, but I don't think it detracts from this fascinating and important book.
It seems customary these days to explain that one has been given a review copy of a book, so let me start by stating (though it seems pretty obvious to me) that I have been given a review copy of this book, published recently by Routledge at the eye-watering price of £115 - that being the main reason that declaring the gift of a review copy is surely redundant. I wouldn't go so far as to say that it's worth £115 of anybody's money, but it will be worth that much of some people's money, and it is a very interesting not-so-little (190 pages of real text) monograph, not padded out with lots of front- and back-matter.
After considering matters of quantum, always the first thing I notice about a book, I start to wonder about the author. He is, the book tells me, an adjunct professor of law at the University of Tel Aviv. The Internet tells me more, and I was particularly interested to read that his first degree is a Bachelor of Music and that he has had an impressive orchestral career already. That might have been his route into copyright law, but if it was it doesn't show in this book, and I found that slightly disappointing: but it doesn't claim to be a book about music copyright, so my disappointment is probably misplaced anyway.
The work, my reservations about the focus on derivative works notwithstanding, is an exploration of how well copyright understands creativity, compared with other fields of study: so, despite the title, it is quite light on black-letter copyright law - and more interesting for it, IMHO. It uses derivative works to inform its discussion of creativity, considering whether the law's treatment of the right to make derivative works (and its inclusion, generally, in the bundle of exclusive rights that the copyright owner enjoys) is compatible with what other disciplines teach us. The author examines the cognitive aspects of creativity before going on to look at genre theories (with an interesting discussion of how Sherlock Holmes derives from the work of Edgar Allen Poe) and the justifications for what he calls the "derivative works right", though I am not convinced of the need to identify it as a distinct instance of copyright protection - reproduction right ought to do the job.
But perhaps that remark just shows me to be unsympathetic to the argument that copyright, in the interest of encouraging creativity, should be more liberal in its treatment of derivative works: surely "derivative" is the opposite of "creative" or "original", and where a later creator wants to use another's copyright material it is a transaction that should be resolved by licensing, not by permitting otherwise infringing acts. A transformative work is another matter, and to my mind copyright should be encouraging the creation of such works rather than engaging in a sterile argument about creating space to make derivative works, space which already exists and is regulated by the requirement that making them requires the copyright owner.

Sunday, 3 February 2019

Crown use as a solution to drug costs

There's nothing new about controversy over the cost to the NHS of patented pharmaceuticals. It's inherent in the patent system that patentees who invest possibly eye-watering amounts of money in devising inventions will want to use their monopoly rights to recover that investment and gain a return on it.

Today The Observer reports on a novel solution to the sometimes terrible problems that can arise when drugs are available to treat life-threatening conditions but the price is out of reach. Mechanisms are in place to try to ensure that the NHS is not charged excessively for new drugs, but they have failed to close the gap between what the NHS can afford and what the patentee wants (£105,000 per patient) in this case. The mooted solution is to use the Crown use provisions of the Patents Act 1977, under which the patentee will receive a modest royalty. Section 55 actually uses the expression "for services of the Crown", but section 56(2) specifically includes "the production or supply of specified drugs and medicines" within "the services of the Crown", making it a surprisingly wide concept.

I don't recall section 55 being invoked very often, and while the facts as narrated by The Observer are rather thin - it concentrates on the undoubted human interest aspects - this certainly looks like an interesting departure in patent law. I hope above all else that a solution can be reached that delivers what the unfortunate patients need.
 

blogger templates | Make Money Online