Law Commons^™

Copyright User Rights And Access To Justice (Introduction), Pascale Chapdelaine

Law Publications

This is an introduction to selected articles published in vol. 35 of The Windsor Yearbook of Access to Justice (2018) further to the Symposium: "Copyright User Rights and Access to Justice" hosted by Windsor Law on May 18-19 2017. It gives a brief overview of the concept of copyright user rights and access to justice, as well as of the main themes discussed in the articles and at the Symposium, including access to knowledge and human rights.

Fetishizing Copies, Jessica Litman

Book Chapters

Our copyright laws encourage authors to create new works and communicate them to the public, because we hope that people will read the books, listen to the music, see the art, watch the films, run the software, and build and inhabit the buildings. That is the way that copyright promotes the Progress of Science. Recently, that not-very-controversial principle has collided with copyright owners’ conviction that they should be able to control, or at least collect royalties from, all uses of their works. A particularly ill-considered manifestation of this conviction is what I have decided to call copy-fetish. This is the …

A Functional Approach To Copyright Policy, Robert E. Suggs

Faculty Scholarship

This essay results from a half-century spent observing the development and stagnation of a once vital music form, jazz. Curiosity spurred its evolution when a successor to John Coltrane failed to emerge within a few years of his early death. Over the ensuing decades, I became concerned that advancing technology and the 1976 Copyright Act had fundamentally undermined our cultural ecology.

Unnoticed over the past century, technology has changed our experience of expressive culture, (the stories, images, and melodies that copyright most strongly protects), from live performance in social settings to solitary consumption of recorded media. Neurologically and physiologically this …

Campbell At 21/Sony At 31, Jessica D. Litman

Articles

When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly forty years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners’ demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting uncertainty …

The Past And Future Of Copyright Politics, Jessica Silbey

Faculty Scholarship

No abstract provided.

Readers' Copyright, Jessica D. Litman

Articles

My goal in this project is to reclaim copyright for readers (and listeners, viewers, and other members of the audience). I think, and will try to persuade you, that the gradual and relatively recent disappearance of readers’ interests from the core of copyright’s perceived goals has unbalanced the copyright system. It may have prompted, at least in part, the scholarly critique of copyright that has fueled copyright lawyers’ impression that “so many in academia side with the pirates.” It may also be responsible for much of the deterioration in public support for copyright. I argue here that copyright seems out …

Digital Locks, Real Freedoms: Technological Protection Measures In Bill C-32, Thomas P. Margoni

Law Presentations

Dr. Thomas Margoni analyzes modifications in Bill C-32 that would most directly affect digital media. Particular attention is given to the implementation of the so-called Technological Protection Measures (TPMs) and Rights Management Information (RMI), and how they will affect fair dealing provisions. He further analyzes whether, beyond the international requirements, Canada (as many other countries) really needs protection for digital locks, which in many cases turns out to be a "private system" of justice. Contract-based alternatives that favour Access to Knowledge (A2K) and wider dissemination of culture (such as Creative Commons and Free/Libre Open Source Software licences) are explored.

The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh

All Faculty Scholarship

‘Common law intellectual property’ refers to a set of judge-made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to co-exist with them. Surprisingly though, intellectual property scholarship has paid scant attention to the nuanced law-making mechanisms and techniques that these regimes employ to navigate through several of intellectual property law’s substantive and structural problems. Common law intellectual property regimes employ a process of rule development that this Article calls ‘pragmatic incrementalism’. It involves the use of pragmatic and minimalist techniques …

Another Look At Bill C-32 And The Access Copyright Tariff: Still Double Trouble For Higher Education, Samuel E. Trosow

FIMS Presentations

Earlier this year, the government tabled Bill C-32, proposed amendments to the Copyright Act. Following a consultation process, the Bill is widely recognized as more reasonable than its predecessor, Bill C-61. On the positive side, the bill would expand fair dealing to explicitly include "education". On the other hand, the digital locks provisions of the Bill are fundamentally flawed and override many existing and proposed users rights. Also this year, Access Copyright filed a proposed tariff for the post-secondary education sector with the Copyright Board. The proposal, which includes a drastic increase in costs as well as numerous new reporting …

Real Copyright Reform, Jessica D. Litman

Articles

A copyright system is designed to produce an ecology that nurtures the creation, dissemination, and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners, and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this Article, I explore how the current copyright …

The Copyright Principles Project: Directions For Reform, Jessica D. Litman, Pamela Samuelson, The Copyright Principles Project

Articles

Copyright law performs a number of important functions. It facilitates public access to knowledge and a wide range of uses of creative works of authorship, and, in so doing, it helps educate our populace, enrich our culture, and promote free speech, free expression, and democratic values. It provides opportunities for rights holders to recoup investments in creating and disseminating their works and to enjoy the fruits of whatever success arises from the public's uses of their works. In the process, copyright also plays a role in regulating new technologies and services through which creative works may be accessed. A well-functioning …

The Copyright Revision Act Of 2026, Jessica D. Litman

Articles

As someone who teaches and writes about copyright law, I end up straddling two different worlds. On the one hand, I really do need to understand and be able to teach the details of the copyright statute and the case law construing it. My students need to know the difference between a public performance right under Section 106(4) and a public performance right by digital audio transmission under Section 106(6); they need to know the difference between the statutory licenses available under Section 114 and the statutory licenses available under Section 115.' So, I need to have all of those …

Choosing Metaphors, Jessica Litman

Book Chapters

The copyright law on the books is a large aggregation of specific statutory provisions; it goes on and on for pages and pages. When most people talk about copyright, though, they don't mean the long complicated statute codified in title I7 of the U.S. Code. Most people's idea of copyright law takes the form of a collection of principles and norms. They understand that those principles are expressed, if sometimes imperfectly, in the statutory language and the case law interpreting it, but they tend to believe that the underlying principles are what count. It is, thus, unsurprising that the rhetoric …

Rethinking Copyright: Property Through The Lenses Of Unjust Enrichment And Unfair Competition, Shyamkrishna Balganesh

All Faculty Scholarship

Responding to Sara K. Stadler Copyright as Trade Regulation:

This Response examines Professor Stadler's argument that “the copyright grant be reformulated to consist of no more than an exclusive right to distribute works publicly.” He agrees that “copyright law ought to be visualized as a doctrine of unfair competition,” but offers an alternative conception of “implementing this ideal.” Balganesh writes, “Since copyright is about generating incentives for creation, we might want to connect [a competitive] nexus requirement to copyright's instrumental purpose through a test of foreseeability. Given that liability for infringement is premised on a showing of copying, such …

Our Uniform Patent System, Clarisa Long

Faculty Scholarship

Patent reform arouses passions among the affected industries, whether they are plaintiffs or defendants, willing users or unwilling participants in the patent system. The key question, therefore, is: How should we structure the patent system in order to best promote innovation in the U.S. economy?

War And Peace: The 34th Annual Donald C. Brace Lecture, Jessica D. Litman

Other Publications

I'd like to thank the Copyright Society and the Brace committee for inviting me to speak to you this evening. I am honored that you invited me to give this lecture. I want to talk a little bit about war - copyright war - and then I want to talk a little bit about peace. It's become conventional that we're in the middle of a copyright war.' I tried to track down who started calling it that, and what I can tell you is that about ten years ago, about the time that copyright lawyers everywhere were arguing about the …

Copyright Legislation And Technological Change, Jessica D. Litman

Articles

Throughout its history, copyright law has had difficulty accommodating technological change. Although the substance of copyright legislation in this century has evolved from meetings among industry representatives whose avowed purpose was to draft legislation that provided for the future,6 the resulting statutes have done so poorly. The language of copyright statutes has been phrased in fact-specific language that has grown obsolete as new modes and mediums of copyrightable expression have developed. Whatever copyright statute has been on the books has been routinely, and justifiably, criticized as outmoded.7 In this Article, I suggest that the nature of the legislative process we …

Copyright, Compromise And Legislative History, Jessica D. Litman

Articles

Copyright law gives authors a "property right." But what kind of property right? Indeed, a property right in what? The answers to these questions should be apparent from a perusal of title seventeen of the United States Code-the statute that confers the "property" right.' Courts, however, have apparently found title seventeen an unhelpful guide. For the most part, they look elsewhere for answers, relying primarily on prior courts' constructions of an earlier and very different statute on the same subject. 2