CIPIL Intellectual Property Seminar: 'Vestigial Copyright Categories and Copyright-Avoiding Business Models'

Speaker: Professor Jane Ginsburg (Morton L. Janklow Professor of Literary and Artistic Property Law, Columbia University School of Law)

Location: Harrods Room, Emmanuel College

Vestigial Copyright Categories and Copyright-Avoiding Business Models

Rebecca Giblin and Jane C. Ginsburg

Abstract

Copyright has long focused on copies, starting, in common law countries, from the 1710 Statute of Anne’s sole rights to print, publish and sell. Copyright’s other principal exclusive right, the public performance right, later (in the U.K. and the U.S.) joined the reproduction right to cover most forms of exploitation of works of authorship. Deriving from distinct enactments, these rights often were administered separately, and both business practice and legal rules reinforced the borders between the regimes of rights. Digital media have now largely blurred those boundaries and their attendant commercial consequences. Business models and consumer expectations have shifted from providing and possessing copies to enjoying access to the content of works of authorship. The right of communication to the public, or (in U.S. copyright terminology) of public performance or display by transmission, thus becomes the paramount copyright prerogative. When enjoying access to works displaces having copies of them, the rights based on copies become increasingly vestigial. In the anatomy of copyright (or at least of digital copyright), the reproduction right shows signs of shrinking to an appendix.

But just as an enlarged appendix can endanger the whole body, so can artificially augmented copy-based business models sap the vitality of the copyright system. Businesses are exploiting perceived gaps in the structure of copyright rights by ingeniously designing their technologies to fulfill demand for personalized access through a structure of personalized copies produced in ways intended to trigger neither the communication to the public nor the reproduction rights. If successful, this tactic will enable these businesses to provide consumers with the on-demand access they want, in a way that competes with licensed services, without any obligation to remunerate the rightholder. Left unchecked, the implications would be significant: in the case of audio and audiovisual works, for example, the on-demand access market may soon exceed the value of the copy-based market. When some participants are licensed but their competitors are not, the imbalance dulls copyright owners’ future prospects for payment and thus may compromise future productivity.

This seminar addresses the U.S. caselaw that encouraged these new businesses to design technologies that could rival licensed transmission models; we analyze the points of apparent legislative mismatch that led some courts to copyright-weakening outcomes, and we consider whether the courts correctly interpreted the U.S. copyright Act. We next compare the U.S. results with similar cases in Australia and the European Union. Finally, we consider, in light of a series of hypotheticals testing the scope of current or modified rules, what the appropriate reach of the right to control on-demand enjoyment of works should be.

Jane Ginsburg is the Morton L. Janklow Professor of Literary and Artistic Property Law at the Columbia Law School. She also directs the law school's Kernochan Center For Law, Media and the Arts. In 2011, Professor Ginsburg was elected to the British Academy.

Refreshments will be provided.