Why the UK Adaptation Right is Superior to the US Derivative Work Right

Abstract

The Copyright Act of 1976 gives authors an exclusive right to prepare derivative works. Since 1976, this right has become one of the most maligned doctrines in US copyright. American scholars claim the law is too broad and inefficiently increases the author’s control over the market for new works. Many of these scholars have, therefore, suggested how to improve current US law.However, American scholars have not noticed how different countries approach the derivative work right in different ways. Some states, like the US, follow a standard-based approach. In these countries, authors receive a broad, vague right to prepare all derivative works. Other states, like the UK, follow a rule-based approach. In these countries, authors receive only a narrow, precisely tailored right to prepare a few, statutorily defined types of derivative works.This article is the first to discuss the two different types of derivative work right. It compares the US standard-based approach to the UK rule-based approach. The article demonstrates why the two countries adopted different approaches to the right. It then shows how the UK approach is more efficient than the US approach. Using law and economic literature on rules versus standards, the article demonstrates how the US standard-based approach has become excessively broad and costly for society. By contrast, the UK avoided these problems by adopting a rule-based approach. Therefore, to optimally improve current US law, Congress ought to amend the Copyright Act and adopt a rule-based approach to the derivative work right, much like the UK's law.