Law Commons^™

Learned Hand's Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

Learned Hand is often described as the greatest copyright judge to have ever sat on the bench. By the 1950s, the most important parts of U.S. copyright law had been his creation, all from his time as a judge on the Second Circuit Court of Appeals. Despite all of this, there has been little systematic analysis of Hand’s approach to copyright and of the reasons why his jurisprudence in multiple areas of copyright law have survived the test of time. This Article argues that the longevity, influence and canonical status of Hand’s contributions to copyright are closely tied to his …

Understanding Intellectual Property: Expression, Function, And Individuation, Mala Chatterjee

Faculty Scholarship

Underlying the fundamental structure of intellectual property law — specifically, the division between copyright and patent law — are at least two substantive philosophical assumptions. The first is that artistic works and inventions are importantly different, such that they warrant different legal systems: copyright law on the one hand, and patent law on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, and can thereby be the subjects of distinct and delineated legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes …

Authoring The Law, Shyamkrishna Balganesh

Faculty Scholarship

Copyright law denies protection to legal texts through a rule known as the “government edicts doctrine”. Entirely a creation of nineteenth century courts, the government edicts doctrine treats expression produced by lawmakers in the exercise of their lawmaking function as altogether uncopyrightable. Despite having been in existence for over a century, the doctrine remains shrouded in significant mystery and complexity. Lacking statutory recognition, the doctrine has come to be seen as driven by open-ended considerations of “public policy” that draw on the overarching importance of public access to laws. In its decision in Georgia v. Public.Resource.Org., Inc., the Supreme …

Fair Use Factor Four Revisited: Valuing The "Value Of The Copyrighted Work", Jane C. Ginsburg

Faculty Scholarship

Recent caselaw has restored the prominence of the fourth statutory factor – “the effect of the use upon the market for or value of the copyrighted work” – in the fair use analysis. The revitalization of the inquiry should also occasion renewed reflection on its meaning. As digital media bring to the fore new or previously under-examined kinds of harm, courts not only need to continue refining their appreciation of a work’s markets. They must also expand their analyses beyond the traditional inquiry into whether the challenged use substitutes for an actual or potential market for the work. Courts should …

Intellectual Property As Seen By Barbie And Mickey: The Reciprocal Relationship Of Copyright And Trademark Law, Jane C. Ginsburg

Faculty Scholarship

Some years ago, caselaw on trademark parodies and similar unauthorized “speech” uses of trademarks could have led one to conclude that the law had no sense of humor. Over time, however, courts in the US and elsewhere began to leaven likelihood of confusion analyses with healthy skepticism regarding consumers’ alleged inability to perceive a joke. These decisions did not always expressly cite the copyright fair use defense, but the considerations underlying the copyright doctrine seemed to inform trademark analysis as well. The spillover effect may indeed have been inevitable, as several of the cases in which the fair use defense …

Stewarding The Common Law Of Copyright, Shyamkrishna Balganesh

Faculty Scholarship

Copyright law is today perceived as principally statutory in origin. The Copyright Act of 1976 is thought to have codified most questions of copyright policy and doctrine, and delegated a fairly limited set of questions to courts for them to resolve incrementally on a case-by-case basis. This is in contrast to prior copyright enactments, which were brief and open-ended in structure, and seemingly envisaged a more active role for courts in rule- and policy-making. Judge Leval thus notes how over time, the idea of a constructive "partnership" between the legislature and courts in making and developing copyright law that once …

From Having Copies To Experiencing Works: The Development Of An Access Right In U.S. Copyright Law, Jane C. Ginsburg

Faculty Scholarship

This essay addresses how current U.S. copyright law responds to new forms of distribution of copyrighted works, through the emerging right to control digital access to copyrighted works, as set out in § 1201 of the 1998 Digital Millennium Copyright Act. When the exploitation of works shifts from having copies to directly experiencing the content of the work, the author's ability to control access becomes crucial. Indeed, in the digital environment, without an access right, it is difficult to see how authors can maintain the exclusive Right to their Writings that the Constitution authorizes Congress to secure. Even if Congress …

International Copyright: From A "Bundle" Of National Copyright Laws To A Supranational Code?, Jane C. Ginsburg

Faculty Scholarship

In recent years, the number and content of substantive norms that international copyright treaties impose on member states have increased considerably. It is therefore appropriate to consider the extent to which those instruments have in effect created an international (or at least multinational) copyright code, as well as to inquire what role national copyright laws do and should have in an era not only of international copyright norms, but of international dissemination of copyrighted works. This Article first considers the displacement of national norms through the evolution of a de facto international copyright code, elaborated in multilateral instruments such as …

Authors And Users In Copyright, Jane C. Ginsburg

Faculty Scholarship

It has become fashionable, among some thinkers and activists in copyright and related fields, to disparage or to deplore copyright protection. For one drawn to copyright both for its intellectual fascination and its inspiring goals of fostering creativity and protecting authorship, I am distressed to learn that I am among the defenders of a fallen faith, that authors' rights are misguided (if not pernicious) impediments to technological progress, and, worst of all, that copyright blocks freedom of thought and speech in cyberspace. Digital agendas notwithstanding, some of this derogatory discourse is not new; infringers have long found eloquent, if somewhat …

Global Use/Territorial Rights: Private International Law Questions Of The Global Information Infrastructure, Jane C. Ginsburg

Faculty Scholarship

In the private international law of intellectual property, and particularly of literary and artistic property, the basic principle is territoriality. Each country provides for its own regime of protection of works of authorship. The Berne Convention for the Protection and Literary and Artistic Works and the Universal Copyright Convention oblige their members to respect the rule of national treatment, that is, of non discrimination between domestic and foreign works from member countries. This rule reinforces the principle of territoriality, for it confirms the role of local copyright laws, by requiring that local law apply equally to the protection of local …

Surveying The Borders Of Copyright, Jane C. Ginsburg

Faculty Scholarship

The copyright course I teach at Columbia Law School begins with a survey of what copyright is not: it is not a patent, a trademark, or an object of physical property. Nor, as the course examines a little later on, does copyright protect every object of economic value whose worth might be further enhanced were it to be shielded from unauthorized copying. However, the frontiers between copyright and mere commercial value have never been well defined. Not only may the same item be simultaneously the object of copyright and of other legal rights, but copyright increasingly covers – or is …

Reproduction Of Protected Works For University Research Or Teaching, Jane C. Ginsburg

Faculty Scholarship

The new means of reproduction for teaching and research – photocopying, downloading, optical scanning – present special challenges to intellectual property teachers. As researchers and educators, we may rejoice at the vastly enhanced access these technologies afford to an enormous, and ever-growing, diversity of materials. The convenience of the photocopier is well-known. Digital media will accelerate production and dissemination of copies. Not only will computers, scanners and facsimile machines make it easier and faster to copy, but they will facilitate the dispersal of copies to all points of the globe.

As scholars of intellectual property, we may be concerned about …

French Copyright Law: A Comparative Overview, Jane C. Ginsburg

Faculty Scholarship

French copyright law has attracted considerable recent attention in the United States. Debate over the nature and scope of legislation permitting U.S. entry into the Berne Union for the Protection of Literary and Artistic Works spurred some of this interest: because France was a founding member of that Union, some participants in the Berne adherence process perceived "Berne level" copyright protection to be synonymous with "French" copyright protection. As Congress continues to consider modifications to the U.S. copyright law, particularly in the area of moral rights, France again supplies a leading example. And the on-going litigation in France concerning the …

Sabotaging And Reconstructing History: A Comment On The Scope Of Copyright Protection In Works Of History After Hoehling V. Universal City Studios, Jane C. Ginsburg

Faculty Scholarship

This comment examines the Hoehling decision, and attempts a definition, in light of Hoehling and prior decisions, of historical "expression." A definition of historical expression is essential to analysis of an historian's infringement claim. Before the fact-finder determines whether a defendant's work is substantially similar to the historian's work, and if substantially similar, whether the fair use doctrine excuses the apparent infringement, the trial judge must first determine whether, as a matter of law, the portions the historian claims were infringed manifest copyrightable expression. If there is no or insufficient expression, the case closes at the summary judgment stage.

This …