Capturing Ideas: Copyright and the Law of First Possession

Part II of this paper, entitled “Wish and Deed,” sets forth an account of the law of first possession through an analysis of the classic case of Pierson v. Post. Part III, entitled “Idea and Expression,” briefly sets forth an account of the idea/expression dichotomy in copyright law through discussion of the classic case of Nichols v. Universal Pictures Corporation. On that basis, Part III unfolds a correspondence between animus and factum in property law and idea and expression in copyright law. Part IV, entitled “Things and Speech,” suggests through discussion of the classic case of Feist that central doctrines in copyright law safeguarding the contours of the public domain can be solidly anchored in an account of the nature of authorship

Capturing Ideas: Copyright and the Law of First Possession

Part II of this paper, entitled “Wish and Deed,” sets forth an account of the law of first possession through an analysis of the classic case of Pierson v. Post. Part III, entitled “Idea and Expression,” briefly sets forth an account of the idea/expression dichotomy in copyright law through discussion of the classic case of Nichols v. Universal Pictures Corporation. On that basis, Part III unfolds a correspondence between animus and factum in property law and idea and expression in copyright law. Part IV, entitled “Things and Speech,” suggests through discussion of the classic case of Feist that central doctrines in copyright law safeguarding the contours of the public domain can be solidly anchored in an account of the nature of authorship

A Note on Incentives, Rights, and the Public Domain in Copyright Law

The article discusses various aspects of copyright law, including public domain, incentives, and rights. The author examines the expansion of U.S. copyright law protection since the court\u27s decision in the case of Donaldson v. Beckett in 1774. He also delves into other topics such as creative minimalism, instrumentalism, and copyright scope limitations. In the author\u27s opinion, the foundation of copyright law is based on the theory of providing incentives to people for their creative works

FROM "RADICAL EXTREMISM" TO "BALANCED COPYRIGHT": CANADIAN COPYRIGHT AND THE DIGITAL AGENDA, Michael Geist, ed., Irwin Law, 2010

On July 27, 2007, the Supreme Court of Canada released a significant decision dealing with copyright and parallel imports, Euro-Excellence Inc. v. Kraft Canada Inc. [Euro-Excellence]. This paper frames Euro-Excellence in light of (a) the evolving roles in Supreme Court of Canada copyright jurisprudence of the concepts of "balance," "reproduction," and "user rights" in the copyright system, and (b) the distinctions between copyright, patent and trade-mark as autonomous yet related legal regimes. More specifically, the paper analyzes Bastarache J.'s judgment in Euro-Excellence in order to tease out the ways in which the concept of copyright's own specific domain - as distinct from that of other modes of intellectual property protection - interacts with that of copyright's purpose, and to speculate about the implications that this interaction holds for our understanding of copyright subject-matter and copyright infringement. The upshot of the discussion is a distinction between "patterns of ink" and "works of authorship" affirming and developing the familiar proposition - contained in the defense of independent creation and the defense of fair dealing - that the mere physical identity of patterns of ink in the plaintiff's and the defendant's respective works need not give rise to copyright liability. Physical identities are not by that token alone infringing copies

Labour and Intersubjectivity: Notes on the Natural Law of Copyright

The paper develops a theoretical approach to copyright law centred on authorial right, yet capable of accounting for the public interest in access to and dissemination of intellectual creations. The paper questions the deployment of Locke's labour theory of property in the formulation of a rights-based view of copyright, and offers a rights-based interpretation of the idea/expression dichotomy inspired by Kant's theory of property. Whereas Locke understood the property right in terms of the category of labour, Kant posited that, as a relation between persons, the property right cannot be derived from a unilateral act - such as labour - of a person on a thing. Deploying the interpersonal dimension of the property right, the paper demonstrates that the idea/expression dichotomy normatively structures the relation between the parties to a copyright action in terms of their equal rights to authorship. To the extent that the defendant has not copied the plaintiff's expression but has instead expressed an idea anew, the defendant has exercised her own authorship. The limits of the plaintiff's right (i.e. the law's refusal to copyright ideas) are thus the contours of a public domain that, as a matter of equality, the plaintiff himself must be held to recognize

Exceptions Properly So-Called

The paper sets out to distinguish four kinds of copyright limitations, of which only one can be regarded as a true exception. There are (a) subject matter limitations, (b) scope limitations, (c) miscellaneous exceptions, and (d) exceptions properly so-called. The upshot of this classification is that “exceptions properly so-called” denote instances where copyright as a juridical order encounters claims recognized in other juridical orders, with the result that the resolution of the ensuing dispute requires reaching beyond or outside the copyright regime itself. The encounter between copyright and freedom of expression is an example of such a situation. One might say that exceptions properly so-called are sites wherein the language of copyright encounters other juridical languages, thereby giving rise to efforts of translation. From this viewpoint, the problem of language and copyright to which this volume is devoted turns out to be less about examining the relationship between different tongues, than about conceptualizing the nexus between copyright and other juridical orders. In this vein, the paper considers the definitions of and distinctions between subject matter limitations, scope limitations and miscellaneous exceptions. It then discusses aspects of the relation between copyright and human rights as an example of an encounter between copyright and other juridical orders. On that basis, it suggests by way of conclusion that “proportionality” is the name we give to the efforts of translation to which exceptions properly so-called give rise. Exceptions are not peripheral phenomena, but rather invitations to understand the relatedness of different juridical orders as aspects of a comprehensive system of rights

From Distribution to Dialogue: Remarks on the Concept of Balance in Copyright Law

Few propositions are more frequently asserted in contemporary copyright discussion than the proposition that copyright is a balance between authors and users - a balance (as some like to say) between the incentive to create and the imperative to disseminate works of authorship. This paper argues that the concept of balance cannot support the weight it is asked to bear in copyright jurisprudence, and that we should think of copyright less as a “balance” between authors and users than as a “dialogue” between authors and users. “Dialogue” is a metaphor more appropriate than “balance” to structure our interpretation of copyright law and of its purpose. The idea of dialogue presides over an interpretation of (a) copyright subject matter (i.e. the “work”) as a communicative act, (b) certain copyright exceptions as user's rights integral to the copyright system, and (c) the public domain less as a matter of values or weights to be placed on a balance, than as a site of, and condition for, a network of communicative acts in which both authors and users participate. In short, the point is that, at least in one of its fundamental determinations, the public domain is less a scope problem than a subject matter problem. Whereas the metaphor of balance orients contemporary copyright discussion towards a formulation of the public domain as a distributional scope issue, it would be more appropriate to deploy the concept of the work as a communicative act in order to characterize the public domain as a subject matter issue in dialogical terms. It is the commodification of the work, rather than the mere distribution of its commodified value, that is the fundamental obstacle in the way of a conception of the integral role of the public domain

Copyright is Not About Copying

This comment was prepared for the Harvard Law Review “The New Private Law” Symposium (October 2011) as a response to Shyamkrishna Balganesh’s “The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying,” 125 Harvard Law Review 1664 (2012). Balganesh’s article makes three inter-related claims: (1) copyright law has a bilateral structure mirroring the correlativity of a private law action; (2) the bilateral structure of copyright law is organized around the centrality in copyright law of the defendant’s obligation not to copy (that is, of the wrong of copying); (3) the internal structure of copyright law can accommodate external plural values, such that attentiveness to this internal structure is in the final analysis compatible with instrumentalist construals of copyright law. My purpose in this comment is to develop a single point: because it misunderstands the bilateral structure it seeks to identify (Part I – “Bilaterality”), Balganesh’s paper misconstrues both the mischief or “wrong” that copyright law targets (Part II – “Wrong”), and the way in which the relation between copyright and other “values” is to be juridically understood (Part III – “Plurality”). The comment concludes with some remarks on the theory of the public domain in copyright, and on the role of copyright theory in the critique of existing copyright law (Part IV – “Private Law as Critical Theory”). In essence, the comment points out that the fundamental import of private law concepts in copyright analysis is not to affirm the centrality of the wrong of copying, but – quite the contrary - to anchor analytically and normatively the irretrievable immanence of the public domain in copyright law