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Tiered Originality And The Dualism Of Copyright Incentives, Shyamkrishna Balganesh
Tiered Originality And The Dualism Of Copyright Incentives, Shyamkrishna Balganesh
Faculty Scholarship
In a a well argued and thought-provoking new article, Gideon Parchomovsky and Alex Stein attempt to give copyright’s requirement of originality real meaning, by connecting it to the system’s avowed institutional goals.1 To this end, they focus on disaggregating originality into three tiers and providing creative works within each tier with a different set of rights and liabilities. Parchomovsky and Stein are indeed
correct to lament the meaninglessness of originality under current copyright doctrine. Yet their proposal does not quite fully explore the incentive effects of differentiated originality, especially as between upstream and downstream creators. Nor does it tell us …
Foreseeability And Copyright Incentives, Shyamkrishna Balganesh
Foreseeability And Copyright Incentives, Shyamkrishna Balganesh
Faculty Scholarship
Copyright law’s principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright’s exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system’s benefits against its costs. Yet, none of copyright’s current doctrines enable courts to circumscribe a creator’s entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …
The Author's Place In The Future Of Copyright, Jane C. Ginsburg
The Author's Place In The Future Of Copyright, Jane C. Ginsburg
Faculty Scholarship
Vesting copyright in Authors – rather than exploiters – was an innovation in the 18th century. It made authorship the functional and moral center of the system. But all too often in fact, authors neither control nor derive substantial benefits from their work. In the copyright polemics of today, moreover, authors are curiously absent; the overheated rhetoric that currently characterizes much of the academic and popular press tends to portray copyright as a battleground between evil industry exploiters and free-speaking users. If authors have any role in this scenario, it is at most a walk-on, a cameo appearance as victims …