Abstract
One of the most significant and most widely discussed elements of the doctrine stipulating the protection of human creations by copyright law is the justification for such protection, particularly when it allocates exclusive rights to the creator. The doctrine is principally based on economic values and does not take into account a philosophical perspective; instead, it considers the equilibrium between protection and the use of people’s work for economic purposes. In general, legal scholars are divided into two groups: those who are highly protectionist and those with a more libertarian outlook who claim that what the artist receives from society and the world must be returned. This essay aims to introduce relevant elements of contemporary hermeneutics into the discussion regarding the justifi cation for copyright protection, advancing a thesis that has not yet been proposed within the legal community. Given that hermeneutics is the fairest and most effective way to search for philosophical truth, it would be fairer and more appropriate to incorporate contemporary hermeneutics into copyright law when deciding on the allocation of exclusive rights. Key words: hermeneutics, copyright, creation, exclusive rights.
Highlights
Um dos elementos mais significativos e discutidos nas análises doutrinárias referentes à proteção das criações humanas pelo direito de autor é a justificativa para tal proteção, em especial sob a forma de exclusividade
If Hyde believes that “by accepting what is given to him, the artist feels compelled to create a work and to offer it to the public”, may we suggest that there are artists who are givers by nature and others who are not? will the non-giver necessarily be a “bad creator”? Will the work of the latter be a “bad creation” in the two most obvious meanings that fit the case at hand? This logic seems to lead to a division between more and less “generous” artists and begs the question of whether some works circulate more than others because they are the objects of what the author calls gifting
One might say that the work, if it does not exist, is nihilated; every work already exists. From this philosophical perspective, every work already exists and does not come from an artist; instead, it comes from an artist and from itself in its locus, and it is part of the creative circle.At the same time, this concept justifies the protection of the creator who concretized the potentiality of the work in its preexisting formHowever, an artistic creation exists as a part within the whole that is the productive career of the artist
Summary
Um dos elementos mais significativos e discutidos nas análises doutrinárias referentes à proteção das criações humanas pelo direito de autor é a justificativa para tal proteção, em especial sob a forma de exclusividade.
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