Law Commons^™

Does Copyright Law Promote Creativity? An Empirical Analysis Of Copyright's Bounty, Raymond S. Ray, Jiayang Sun, Yiying Fan

Vanderbilt Law Review

Modern copyright law is based upon a theory: increase copyright protection and you increase the number of creative works available to society. This theory has been the driving force behind an economic vision that has expanded, beyond all recognition, the original law created by the Statute of Anne. And with this expansion, we are told that the costs associated with copyright are worthwhile because of the bounty it produces. What if this theory could be tested? After all, this is not a question of faith or morality, nor is it a statement on how humans should behave; it is a …

Creating A Legal Framework For Copyright Management Of Open Access Within The Australian Academic And Research Sector, Brian Fitzgerald, Anne Fitzgerald, Mark Perry, Scott Kiel-Chisholm, Erin Driscoll, Dilan Thampapillai, Jessica Coates

Mark Perry

This Report analyses the copyright law framework needed to ensure open access to outputs of the Australian academic and research sector such as datasets, articles and theses. It is written in the context of an increasing recognition, in Australia and internationally, that access to knowledge is a key driver of social, cultural and economic development and that publicly funded research should be openly accessible. With the objective of enabling access to knowledge, this Report proposes the development of clear protocols for copyright management (designed as practical and effective tools) for implementation in the Australian academic and research sector The Report …

“Fit For Purpose”: Why The European Union Should Not Extend The Term Of Related Rights Protection In Europe., Susanna Monseau

Fordham Intellectual Property, Media and Entertainment Law Journal

This paper argues that the European Union should not, as it currently proposes, extend the term of protection for sound recordings in Europe. It compares the U.K. government’s current policy that the scope and length of copyright protection for sound recordings should not be extended, with that of the European Union which, encouraged by the French government particularly, has recently proposed an extension from the fifty-year term to a ninety-five-year term of copyright protection for sound recordings. It analyzes several major independent reviews of the evidence on extending copyright protection for sound recordings, including the findings and recommendations of the …

The Graying Of The American Manufacturing Economy: Gray Markets, Parallel Importation, And A Tort Law Approach, Joseph Karl Grant

Journal Publications

This Article examines the history of the gray market in the United States through an analysis of both the domestic legislative framework and judicial treatment of gray market goods, primarily under trademark and copyright law. Part I of this Article provides a general introduction into the structural factors that cause parallel importation. Part II begins a discussion of trademarked goods by looking at the purposes of trademark law. Part III starts by discussing the relevant doctrines and provisions of the Copyright Act of 1976, which frame the gray market discussion. Part III concludes by examining the current debate and the …

The Super Brawl: The History And Future Of The Sound Recording Performance Right, Brian Day

Michigan Telecommunications & Technology Law Review

On February 4, 2009, Senator Patrick Leahy introduced the Performance Rights Act ("PRA") to the Senate, joined by Representative John Conyers in the House of Representatives. Thirty-eight years after sound recordings were first granted federal copyright protection against unauthorized reproduction and distribution--and more than ten years after gaining a limited digital performance right--legislation is pending that would once again expand the scope of sound recording copyright to encompass terrestrial radio broadcasts. Historically, such broadcasts have been exempt from sound recording performance royalties.[...] Instead of (or in addition to) seeking remuneration from terrestrial radio stations, this Note suggests that sound recording …

Conditions And Covenants In License Contracts: Tales From A Test Of The Artistic License, Robert W. Gomulkiewicz

Articles

Pity the poor Artistic License version 1.0 (ALv1). The Free Software Foundation criticizes the license as “too vague” with some passages “too clever for their own good.” The Open Source Initiative suggests that it has been “superseded.” ALv1’s authors at the Perl Foundation even acknowledge its flaws.

Yet it is the ALv1, not the venerable GNU General Public License (GPL), which the Federal Circuit upheld in Jacobsen v. Katzer [535 F.3d 1373 (Fed. Cir. 2008)], establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the case’s greater significance lies elsewhere.

Jacobsen …

"Transformative" User-Generated Content In Copyright Law: Infringing Derivative Works Or Fair Use?, Mary W.S. Wong

Vanderbilt Journal of Entertainment & Technology Law

In the United States, the line between the type and level of transformation required for a copyrightable derivative work and that required to constitute fair use has not been drawn clearly. With the rise of user-generated content, this question (which arises in two distinct copyright contexts) has become even more important. At the same time, copyright law has generally shied away from defining authorship as a legal concept, preferring instead to develop and rely on the related (but not identical) concept of originality. This has resulted in a low copyrightability threshold that does not adequately account for the fact that …

Mass Culture And The Culture Of The Masses: A Manifesto For User-Generated Rights, Debora Halbert

Vanderbilt Journal of Entertainment & Technology Law

User-generated content is a term used to describe the division between culture produced as a commodity for consumption and the culture that is generated by people acting as creative beings without any market incentive. While under current copyright law all types of creativity are protected, the laws of copyright exist primarily to protect commercial forms of expression, not the non-commercial ones that form the foundation of user-generated content. The disconnect between what current copyright law protects and how most people create generates tensions that must be addressed. This Article presents an argument for broader protection of all creative work, including …

Hume's Penguin, Or, Yochai Benkler And The Nature Of Peer Production, Steven A. Hetcher

Vanderbilt Journal of Entertainment & Technology Law

This Article examines 'peer production," a term coined and a concept explicated by Yochai Benkler. My own interest in peer production stems from its importance as a new form of user-generated content. User-generated content is particularly interesting if Benkler is right in his claim that the positive analysis of peer-produced content may have normative implications with respect to copyright law--in particular, the implication that copyright law may play a deleterious role in the formation and maintenance of this potentially significant new form of user-generated content. We are in need of a theory of collective action for the social world that …

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 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 …

The Politics Of Intellectual Property, Jessica D. Litman

Articles

In May 2005, Keith Aoki invited me to participate on a panel on "The Politics of Copyright Law" at the 2006 Association of American Law Schools ("A.A.L.S. ") mid-year meeting workshop on Intellectual Property in Vancouver, British Columbia. The panel, renamed "The Politics of Intellectual Property," and moderated by Keith, included talks by Justin Hughes, Mark Lemley, Jay Thomas, and me, and it was followed by three concurrent sessions on "The Politics Concerning Moral Rights," "The Politics of Global Intellectual Property, " and "The Politics of Patent Reform." I'm not sure what the organizing committee had in mind when it …

Intellectual Liability, Daniel A. Crane

Articles

Intellectual property is increasingly a misnomer since the right to exclude is the defining characteristic of property and incentives to engage in inventive and creative activity are increasingly being granted in the form of liability rights (which allow the holder of the right to collect a royalty from users) rather than property rights (which allow the holder of the right to exclude others from using the invention or creation). Much of this recent reorientation in the direction of liability rules arises from a concern over holdout or monopoly power in intellectual property. The debate over whether liability rules or property …

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 …

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 …

Technology & Uncertainty: The Shaping Effect On Copyright Law, Ben Depoorter

Ben Depoorter

This Article examines the symbiotic relationship between copyright law and technology. I describe how an environment characterized by rapid technological change creates two conditions that determine the direction and evolution of copyright law: legal delay and legal uncertainty. I explain how uncertainty over the application of existing copyright law to newly emerging technology catalyzes the actions of copyright owners and users. I argue that uncertainty and delay (1) have an enabling effect on anticopyright sentiments, (2) lead to a greater reliance on self-help efforts by content providers and users, and (3) induce legislative involvement in copyright law. In the final …

The “Spiritual Temperature” Of Contemporary Popular Music: An Alternative To The Legal Regulation Of Death-Metal And Gangsta-Rap Lyrics, Tracy Reilly

Tracy Reilly