Jane C. Ginsburg

Copyright and Control Over New Technologies of Dissemination

The Constitution envisioned the exclusive rights of authors as a means to achieve the progress of knowledge. But the relationship of copyright to new technologies that exploit copyrighted works is often perceived to pit copyright against progress. As we tend to perceive progress as both inexorable and good, it would follow that if copyright is seen to conflict with the progress of technology, then the exclusive rights of authors should yield to the greater good of broader public dissemination of works of authorship. Recent legislation and caselaw have instead enhanced copyright owner control over new technologies of dissemination. Does this mean that our copyright laws are moving in the wrong direction? This article suggests that the relationship of copyright and technology is more nuanced than it might first appear. History shows that when copyright owners seek to eliminate a new kind of dissemination, and when courts do not deem that dissemination harmful to copyright owners, courts decline to find infringement. But, when copyright owners seek to participate in and be paid for the new modes of exploitation, the courts, and Congress, appear more favorable to the proposition that when the new market not merely supplements but also rivals prior markets, copyright owners should control that new market. With respect to current, Internet-related technologies, both courts and Congress seem to focus more on the role of copyright control in developing potential new markets than on the harm a lack of control would bring to old ones. This supportive approach derives from a perception that the unlicensed (and often unpaid) distribution of works over the Internet competes unfairly with the copyright owners ability to avail itself of new markets for digital communication of works, and that this competition will ultimately lead to less rather than more public availability of works of authorship. But, even assuming that copyright owners can exercise effective control, is this power misplaced if it primarily benefits industrial-strength copyright owners, as opposed to authors themselves? The current debate over copyright control focuses on perceived or potential overreaching by powerful intermediaries; the prospects for authors most often are overlooked. Greater author control not only enhances the moral appeal of the exercise of copyright, it also may offer the public an increased quantity and variety of works of authorship, as authors whom the traditional intermediary-controlled distribution system may have excluded now may avail themselves of digital media and accompanying copyright controls directly to propose to the public (and be compensated for) their creations.

'The Sole Right . . . Shall Return to the Authors': Anglo-American Authors' Reversion Rights from the Statute of Anne to Contemporary U.S. Copyright

This study of author’s reversion rights begins with the Statute of Anne and the debates that led up to the adoption of section 11, which vested in the author a second fourteen-year term, provided he or she was still alive at the end of the initial fourteen-year term. The study then will address the impact of the author’s reversion right on publishing practice and authors’ welfare in the United Kingdom through the eighteenth century to the demise of the reversion right in 1814. We will suggest that the apparent lack of use of the reversion right by authors in the eighteenth century was a result of a host of factors, including but not limited to the common (but by no means universal) contractual practice which purported to confer on a publisher the entirety of an author’s rights. In addition, we call attention to the multiple and shifting interpretations of what was required by section 11, as well as the social and economic limitations on an author’s capacity to take advantage of the reversion. The second half of this study turns to the law and publishing practices in the United States, where reversion rights have proved more enduring if not always more beneficial to authors. The study concludes that history and practice suggest at best inconsistent achievement of reversonary rights’ aim to offset the author’s weaker bargaining position by assuring her a future opportunity to make a better deal. Legislators might improve the reversion rights regime, but it is not clear that authors’ lots will accordingly ameliorate. Substantive regulation of contracts of transfer, rather than rights to terminate those transfers, may offer the preferable path to ensuring meaningful and effective protection of authors’ interests in reaping the fruits of their intellectual labors.

Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in US copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to Internet users. This article will first address the international norms that domestic laws of states member to the multilateral copyright agreements must implement. It next will explore how two of the most significant regional or national copyright regimes, the EU and the US, have coped with the question of linking, and then will consider the relationship of the emerging approaches to copyright infringement with national and regional laws instituting limited immunity for copyright infringements committed by internet service providers. We will conclude with an assessment of the extent to which the outcomes under US and EU regimes, despite their apparently different approaches, in fact diverge.

Intellectual Property in News? Why Not?

This Chapter addresses arguments for and against property rights in news, from the outset of national law efforts to safeguard the efforts of newsgathers, through the various unsuccessful attempts during the early part of the last century to fashion some form of international protection within the Berne Convention on literary and artistic works and the Paris Convention on industrial property. The Chapter next turns to contemporary endeavors to protect newsgatherers against “news aggregation” by online platforms. It considers the extent to which the aggregated content might be copyrightable, and whether, even if the content is protected, various exceptions set out in the Berne Convention permit its unlicensed appropriation.

The Agreement Between Columbia Law School of New York and the Faculty of Law of Sapienza University of Rome

The agreement between Columbia Law School of New York and the Faculty of Law of Sapienza University of Rome, signed in March 2010 by the Deans of both schools, and whose faculty directors are respectively Prof. Jane Ginsburg and Prof. Laura Moscati, provides for the annual exchange of three students from each of the two institutions.

The Berne Convention: Historical and institutional aspects

Declarations, let alone ‘solemn declarations’, are grand things. They have a tradition that goes back at least as far as the US Declaration of Independence and are exemplified, in the twentieth century, by various declarations in the international sphere, beginning with the Universal Declaration of Human Rights at the end of World War II. Other more contemporary declarations of rights have proliferated in specific areas of concern, for example, the rights of indigenous peoples,1 the human genome2 and human genetic data,3 and bioethics.4 Authors’ rights, too, have been the subject of a ‘solemn declaration’, although one that is perhaps less well known. This declaration was made by members of the Berne Union at the celebration of the centenary of the Berne Convention for the Protection of Literary and Artistic Works meeting in formal assembly in Geneva on 11 September 1986. Reaffirming their commitment to protect the rights of authors in ‘as effective and uniform manner as possible’, these states went on to:

Proto-Property in Literary and Artistic Works: Sixteenth-Century Papal Printing Privileges

This Study endeavors to reconstruct the Vatican’s precursor system of copyright, and the author’s place in it, inferred from examination of over five hundred privileges and petitions and related documents — almost all unpublished — in the Vatican Secret Archives. The typical account of the precopyright world of printing privileges, particularly in Venice, France and England, portrays a system primarily designed to promote investment in the material and labor of producing and disseminating books; protecting or rewarding authorship was at most an ancillary objective. The sixteenth-century Papal privileges found in the Archives, however, prompt some rethinking of that story because the majority of these privileges were awarded to authors, and even where a printer received a privilege for a work of a living author, the petition increasingly asserted the author’s endorsement of the application. The predominance of authors might suggest the conclusion that the Papal privilege system more closely resembled modern copyright than printer-centered systems. That said, it would be inaccurate and anachronistic to claim that authorship supplied the basis for the grant of a Papal privilege. Nonetheless, a sufficient number of petitions and privileges invoke the author’s creativity that one may cautiously suggest that authorship afforded a ground for bestowing exclusive rights.The Study proceeds as follows: first, a description of the sources consulted and methodology employed; second, an account of the system of Papal printing privileges derived from the petitions for and grants of printing monopolies; third, an examination of the justifications for Papal printing monopolies and the inferences appropriately drawn regarding the role of authors in the Papal privilege system.

Private International Law Aspects of Authors' Contracts: The Dutch and French Examples

Copyright generally vests in the author, the human creator of the work. But because, at least until recently, most authors have been ill-equipped to commercialize and disseminate their works on their own, the author has granted rights to intermediaries to market her works. Since most authors are the weaker parties to publishing, production, or distribution contracts, the resulting deal may favor the interests of the intermediary to the detriment of the author’s interests. Many national copyright laws have introduced a variety of corrective measures, from the very first copyright act, the 1710 British Statute of Anne, which instituted the author’s reversion right (still in force, albeit much modified, in U.S. copyright law), to detailed limitations on the form and scope of grants found in many continental European copyright laws. Recently, the Netherlands and France have amended their copyright laws to reinforce author-protective provisions; the French reforms particularly envision the publishing contract in the digital environment. But many author contracts, especially in the digital environment, grant rights for multiple territories: how does the international dimension of these agreements affect the practical ability of individual countries to regulate authors’ contracts with respect to exploitations occurring within their borders? If, on the one hand, “lawmakers tend to be provincial in developing copyright-contract rules, remaining focused on largely local parties and interests rather than on policies common to many jurisdictions,” and, on the other, general principles of private international law leave to the parties the determination of the law applicable to their contract, may the parties simply avoid “provincial” protections of authors’ economic interests by choosing (or the stronger party imposing) the law of a less author-interventionist jurisdiction to govern the full territorial extent of the transfer?This Article will first discuss two examples of reforms of copyright-contract law, then will consider the extent to which private international law rules may render these reforms largely ineffective for authors who grant rights for multiple territories. Finally, we will propose private international law approaches that preserve local author-protective contract restrictions without rendering the implementation of the international agreement unduly cumbersome or unpredictable. We recognize that our approach departs from classic, content-neutral, private international law rules, because it seeks to impose a particular outcome. But content-neutral choice of law rules are what create the problem that provoked this examination in the first place: the rule of “party autonomy,” that directs courts to look to the law the parties choose for their contract enables the stronger party to avoid weaker party protections simply by submitting the contract to a less-constraining national law. The proposed rule remains within the general private international law (non substantive) framework because it in no way instructs States to adopt author-protective measures. It simply endeavors to ensure, if a State does determine to recalibrate the balance of power between authors and exploiters, that the contract not set the State’s efforts to protect its resident authors to naught.

Kernochan Center for Law, Media and the Arts Panel Transcript: Who’s Left Holding the [Brand Name] Bag? Secondary Liability for Trademark Infringement on the Internet

JANE GINSBURG: This is our last panel, and the object is to bring a number of experts, including practitioners and academics, from the United States and from abroad, to react to the two proposals that we just heard. Each of the panelists will give initial comments, and then we are going to go around the table again so that our panelists can react to one another’s comments. We will go in the following order: First, Amy Cotton from the Patent and Trademark Office. She’s our government representative. I’m not sure if you’re speaking with your government hat or disclaiming— AMY COTTON: Disclaiming. JANE GINSBURG: Disclaiming—but she’s still from the government. Next, Bob Weigel, at the far end, who is with Gibson Dunn and represented Gucci in the Gucci v. Frontline case.1 Bob will be speaking, I suspect, from the brand owner point of view. BOB WEIGEL: That’s a fair bet. JANE GINSBURG: Next, Bruce Rich from Weil Gotshal, who happens to have been the successful counsel in the eBay case.2 I think you’ll be standing in for the service providers. And then, crossing a couple of oceans—one ocean first: Miquel Peguera, from the Open University of Catalonia, who is a leading expert on the liability or nonliability of service providers. He has, among other things, published an important article in the Columbia Journal of Law & the Arts,3 which will be publishing the proceedings of this symposium a couple of months hence. And then, from across yet another ocean—Irene Calboli, who is currently visiting at the National University of Singapore and who will be talking about the effect of the free trade agreements and the potential trans-Pacific partnership on questions of secondary liability for service providers. AMY COTTON: Thank you, Jane. I’m wearing my invisible government hat, so watch out.

Exceptional Authorship: The Role of Copyright Exceptions in Promoting Creativity

It has been suggested that today’s authors need copyright exceptions and limitations more than they need exclusive rights. I will first test the proposition by examining what one might call authorship-oriented exceptions, from ‘fair abridgement’ in early English cases to the original meaning of ‘transformative use’ in the U.S. fair use doctrine. All of these exceptions trained on the promotion of creativity by allowing authors to make reasonable borrowings from old works in the creation of new ones. I conclude that both today’s assemblers of ‘remixes’ and yesterday’s traditional creators of works of entertainment or scholarship have needed the flexibility with which these kinds of exceptions temper exclusive rights.Next I will examine the bolder proposition that, compared with their need for limitations on copyright, authors today neither desire nor require exclusive rights. The claim suggests that today’s authors do not (or should not) seek to make a living from or control the exploitation of their creations. Behind the belittling of exclusive rights there loom significant business interests built on the expansion of copyright exceptions. The exceptions in question do not foster creativity, they redistribute the fruits of creativity. They are authorship-undermining exceptions because their justification increasingly relies on the denigration of proprietary authorship.It has long been popular to point out that the romantic author has long been a front for unromantic, unlovable copyright industries, from the booksellers of the eighteenth century to the MPAA and RIAA of today. I would like to suggest that today’s counterpart – or antidote? – to the romantic author, the techno postmodernist participant, is also a shill for big industry. The instrumentalization of the author, or of the anti-author, still serves big business, it’s just that the business consumes copyrighted works, rather than produces them.