By Leslee Friedman, Intellectual Property Watch

There is a familiar, unattributed quote that goes, “there are no new stories, only different ways of telling them.” In the world of intellectual property, this is a foundational concept, central to the ideal balance of IP rights and freedom of expression.

Experts spent last week at the World Intellectual Property Organization tackling just this issue, among others, in drafting an instrument of protection for traditional cultural expressions. Questions about the meanings of “derivative” or “adapted,” about when such derivation or adaptation makes a work an infringement, or when it adds to a living traditional cultural expression, or creates something entirely new arose repeatedly in the process.

At the same time, the United States awaits answers to similar questions in the arena of published fiction. In April of this year, the Second Circuit overturned an injunctive ruling against a piece of writing relying heavily on the text Catcher in the Rye. In Salinger v. Colting, the court vacated a decision by the lower court granting injunction and remanded it to the lower court, with an order that Colting’s fiction be considered under each of the four prongs in the US Supreme Court’s eBay Inc. v. MercExchange LLC standard, previously applied only in patent cases. The test as stated in that case is as follows:

Issuance of injunctive relief against [the defendants] is governed by traditional equitable principles, which require consideration of (i) whether the plaintiff would face irreparable injury if the injunction did not issue, (ii) whether the plaintiff has an adequate remedy at law, (iii) whether granting the injunction is in the public interest, and (iv) whether the balance of the hardships tips in the plaintiff’s favor.

Read more: US Second Circuit Decision Opens Questions Of Transformative And Fair Use