Introduction
Literary appropriation may be defined as the legal beneficial and creative art of borrowing from literary work of another author to come up with a completely different work from the original (Adeney 2013). It is simply the unoriginal, imitative or different perspective of the original work as seen and created by the ‘new’ author. It is different from plagiarism, which is essentially copying, direct lifting of an author’s words without acknowledgement, stealing of another’s work or pirating. These borrowed ideas are geared towards achieving certain literary objectives such as to criticize, ridicule, create new literary work, prepare a sequel, fan fiction and a prequel, or to simply rewrite the work from a different perspective such as from feminine angle of the subsequent author (Jani 2008). The objectives can be said to be the functions of literary appropriation (Nolan and Dawson 2004)). Every author has an objective to achieve; thus, the functions vary from one author to the other. For example, a sequel is a literary work which develops the story, theme or subject of an earlier one, a prequel work comprises earlier happenings or events of a current literary work a rewrite work contains slight alterations or improvement and a fan fiction is a literary work about a fictional character as done by a fan of a particular original fiction. The legal framework governing literary appropriation is the copyright law, which essentially deals with protection of intellectual property. Every state has laws defining, protecting and guiding the creation and use of intellectual properties of individuals, and Australia is no exception (Nolan and Dawson 2004). Unlike authorized literary appropriation, authorized derivative works have copyright protection under the law only if they are done to the extent allowed by the authority of the original author or for the intended purpose. Otherwise they are infringement of the intellectual property. This essay will thus address and persuasively discuss literary appropriation as a whole and the available legal provision in Australia and the adequacy of those laws in relation to sequels, prequels, fanfiction and rewrites.
The Australian Literary Appropriation Law on Sequels, Prequels, Fanfictions and Rewrites
Australia has a long history of literary appropriation, which for the longest time was not covered directly under the law (Nolan et al. 2004). Many appropriation works were created without due regard to the intellectual property rights infringements occasioned on the authors who originally came up with those works. However, the 1968 statute has since been amended to incorporate the issues and the extent of applicability of borrowing ideas from other peoples’ works. The regulative legal framework was not clear on what constituted literary work. Currently, literary appropriation is covered under the Australian Copyright Act 1968 as amended by Copyright Amendment Act of 2006 (Sainsbury 2007; Australia Copyright Amendment 2006)). The exceptions introduced parody and satire to the Copyright Act, 1968. The exceptions are classified as ‘use of copyright for certain purposes’ under Part 3 in sections 41A and 200AB of the Act. These exceptions can be termed as legal infringement of copyright in literary work, which for a long time was not provided for by Australian law. The introduction of these exceptions was unnecessary because such ‘legal abuse of copyright’ in sequels, prequels, rewrites and fanfiction still amount to infringement of the intellectual property rights of others. .
The much awaited 2006 Copyright Amendment classifies the derivative work under fair dealings in copyright. Section 41A provides that a literary appropriation in form of parody or satire does not fall under the category of works considered to be an infringement of the original copyright. They are the exceptions of infringement of copyright which are allowed by the statute. Any author who creates a literary work under this category cannot be legally liable for a copyright infringement of the original literary work because it would not amount to a contravention of the copyright. Section 200AB provides conditions amounting to the certain circumstances under which a copyright can be legally infringed. The circumstances include one, usage by an administering body, a library or archives for the purposes of maintaining or operating the library or archives the usage of which must not be for commercial purposes. Secondly, the legal exceptions allows literary appropriation of literacy work by or on behalf of an administration body of an educational institution for the purposes of giving educational instructions, which again must not be used for commercial purposes. This exception expressly covers educational literature only (Spies 2011). It is clear that these provisions do not provide for all literary work such as sequels and prequels. In this sense, the law is biased on protecting other works. The Act’s provisions seems to protect academic-related literature only. It does not make provisions to protect the works of non-educational literature, which also need protection to safeguard both proprietary and economic rights of the original authors.
The third class of circumstance covers usage by people with disability causing difficulty in reading, viewing or hearing. This latter category must also not be for commercial purposes. Furthermore, under section 200AB (1), (c)-(d), the Act provides that the literary appropriation must not conflict with the ordinary exploitation of the work, and must not unreasonably prejudice the legitimate interests of the owner of the copyright. Such legitimate interest may include proprietary rights and commercial rights. Generally, the exceptions promote fair dealing for research and study purposes. The amounts of allowed copyright as covered under section 40 (3)-(8) of the 1968 Act vary depending on the type of work or adaptation made. For example literary work contained in a hard copy in a published edition is reasonable if a portion of 10% is copied. Sequels, prequels and rewrites fall under this umbrella. An unauthorized sequel or prequel would thus be considered a completely illegal appropriation. This would then translate to the full deprivation of the proprietary rights and commercial rights of the original author which the Act prohibits. For fan fiction, the derivative work is not literally borrowed. The only thing that the author does is to write about the character he/she admires. The extent of appropriation is thus far-fetched (Takolander 2005). Therefore classifying unauthorized fanfiction under the Act as an infringement of intellectual property such is wrong because fanfiction neither interferes with rights the proprietary rights nor the intellectual property rights because the derivative author exercises his mind to create a completely different literary work from that of the original author.
The statute thus provides only for authorized appropriation of educational literature in general. However, the Act is not clear on the position of sequels, prequels, rewritings and fan-fiction in relation to their position as literary work and the extent to which they can be appropriated. Therefore, the position of unauthorized appropriation in these literature is also not clear and the Act must provide for them to create equality of legal protection of intellectual property of all authors.
Must there be Law on Literacy Appropriation for all Literary Works?
In the contrary, not all situations require legal protection of rights of individuals and literature is one of them. Literary appropriation and the consequential rights can be protected by ethical, economic, proprietary and moral requirements which attach great importance to the works of literary artists. In as much as the four works discussed are not provided for by the law any authorized appropriation infringes copyright and thus needs to be guarded against such oversteps. The inadequacy of the law must not be an excuse to appropriate the work of another for various reasons discussed below.
First, ethical requirements dictate that there must not bet conflicting interests in promotion of the work of the original and derivative authors (Adeney 2013).The ethical dilemmas are evidenced when one fails to show respect to the original author’s work or fails to recognize the accomplishment of the author or shows respect to an otherwise undeserving derivative author’s work. Showing respect in this sense means acknowledging the source of the information used by the derivative author. Where the work appropriated is unauthorized by the original author, whether as a sequel, a prequel, a rewriting or a fan fiction the derivative author clearly infringes the intellectual property rights. Recognition is given only to the works of the original author of such work. Therefore there is no need to have a law in place to enforce laws provided for by ethics.
Secondly, intellectual property requirements command that any property, especially creations of the mind such a literary work belongs to the person who creates it. Any property under the sun has an owner, either as individual or the state. It simply states that intellectual property rights are inherent. Therefore, the intellectual property objectives is to protect and encourage development and preservation of the creative works of authors and as such the person who spends time, energy and resources to come up with a literary work deserves acknowledgement for the work done (Hettinger 1989). Closely connected to these issues is the high possibility of the consumer of literary work failing to show respect for property interest, recognition of social claim to products of one’s mental activity and the creation of a bar for the right of access to information by the society (Alfino 1991). It is however important to understand that the author’s work is a personal property and such confusions rarely arise because that author is known to all. This position is supported by the Australian Copyright Act, 1968 which basically aims to protect the individual’s commercial interest rather than communal interest in the literary work (Janke 1996). Such notion disqualifies the derivative or non-indigenous author from commercially benefitting from the original work. The original author is known and his work are in his hand. There is no way another person who only borrows ideas to come up with a new literacy work like a sequel would make him lose commercial benefits from the work which is essentially different from the derived one. Therefore there is no need for any law to regulate such infringement, whether authorized or not.
For economic purposes, the general rule of the law as covered by the Copyright Act of 1968 which only recognizes the original copyrights as registered in the original literary works. Authorized derived works are also acknowledged and protected by the law as an exception to the general rule. The law thus appreciates that even the derivative authors who create derivative works spend energy, time and resources to come up with such unique works, albeit from borrowed ideas. Therefore, giving respect, acknowledgment of efforts and appreciation of the consequential authorized derivative literary work is acceptable, save for exceptions for commercial purposes and the extent of applicability of the authority to appropriate literary work (Woodmansee 1984).
The moral aspects of literary appropriation relates to dignity and integrity of the authors themselves. It is independent from the economic rights. Although the law allows for derivative literary works in various forms, the dignity of the indigenous author tends to be eroded by derivative authors who do not acknowledge the source of their work as taken from the original work. In contrast, it is right therefore right to state that unauthorized appropriation of literary work which acknowledges the original author does not amount to a crime and need no law to define or provide for it.
The legal framework and functions of literary appropriation are equally important for both copyright protection and research and studies respectively. The original author and his/her work also need recognition and acknowledgement of the efforts put into the work. However, derivative works generally bring in different perspective(s) or form(s) not covered in the other original work. In as much this is the case, we all agree that time is of essence in educational and special needs literary appropriation should not require authorization. Moreover, some derivative works are very unique in nature such that the content or ideas are so far apart that the work cannot be said to have borrowed from the other, for example a prequels or a sequel where the author brings in new characters, plot, theme and storyline to tell the converse side of the story (Adeney 2013). These authors should be allowed by the law to also enjoy the fruits of the work by selling them because such commercial engagement in no way interferers with the enjoyment of similar rights of the original author; the products are essentially different in content and organization. This argument is true for sequels, prequels and nonfiction (Woodmansee 1984).
Conclusion
Therefore, unauthorized derivative works in the form of sequels, prequels, rewrites and fanfiction are infringements of intellectual property rights by dint of them taking ideas from previously created works and needs to be covered by the law for clarity of enjoyment of those rights and to avoid economic and proprietary loss to the real authors. Therefore, a derivative work, which has not followed the laid down rules infringes on the copyright of the author, and is liable in criminal action against his person. Sadly, the legal framework appears to operate to hinder the development of works by making such restrictions. The current legal framework can be amended to allow post derivation authority for literary works produced without the authority of the original author to avoid the wastage of mental effort, time and resources spent on the appropriated literary works and thereby promote the development of literary work in general (Adeney, 2013).
Reference List
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