Rewriting and Copyright Law: A Literary and Legal Analysis

Abstract In narrative literature, phrases, characters and plot elements frequently cross borders, moving from one text to another. In doing so they establish intertextual relations, including those particularly strong ones for which postcolonial and feminist literary theory have coined the term rewriting. This practice of ‘writing back to’ or rewriting existing works of literature is particularly significant as a means of expression for marginalized groups whose perspectives are missing from the pre-texts. Consequently, intertextual friction and a stance of resistance often mark the relationship between rewritings and their pre-texts. The focus of our multidisciplinary paper is to analyze the implications of rewriting for EU copyright law. Rewritings are contextualized on the continuum between infringing adaptation and free use outside the scope of protection. Copyright law faces the dilemma that it should reward the creative power of the pre-text’s author, while not stifling the creative power expressed in rewriting. We evoke a responsibility for copyright law to enable rewriting and assess potential strategies of how copyright law can meet this responsibility.