Wendy Gordon, ‘The Core of Copyright: Authors, Not Publishers’

Copyright largely consists of alienable rights and correlative duties — rights of exclusion given to individuals, and correlative duties not-to-copy imposed on the public. This Article argues that such right/duty pairs arise out of authorial creation. A focus on creation is not very popular at the moment; a growing number of commentators take the position that copyright is ‘about’ making publishing and other dissemination industries more efficient and stronger. The Article encourages the legal community instead to return to the focus that the Supreme Court articulated in Feist Publications, namely, that copyright must serve creative authorship rather than noncreative labor.

The Article explores history, legal doctrine, and economics to investigate whether Congress may, for the purpose of aiding publishers and other disseminator industries, impose on the public a set of duties-not-to-copy others’ speech. In Eldred v Ashcroft and Golan v Holder, the Court upheld expansions of copyright even in regard to already-created works, relying in part on the possibility that the legislative expansions might incentivize noncreative dissemination. In each case, the contested statutes eliminated what would otherwise have been a public domain status for the works involved. One argument seemed to be that publishers or entertainment companies might repair and reissue more of their stockpiled films, books, or sound recordings, if they owned or could purchase copyright in them, as compared to how many films, etc., the companies would repair and reissue if the works were in the public domain …

Gordon, Wendy J, The Core of Copyright: Authors, Not Publishers (January 12, 2015). Houston Law Review, Vol 52, No 2, 2014, p 613; Boston Univ School of Law, Public Law Research Paper No 15-01; Boston Univ School of Law, Law and Economics Research Paper No 15-01.

First posted 2015-01-19 07:36:49

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