ABSTRACT
This review of of the period 2001-21 in US copyright law will summarize digital-dominated developments concerning the scope of exclusive rights and exceptions and liability regimes. It will address several developments, all related to the impact of the Internet on the exploitation of works of authorship. Digital storage and communications have called into question the scope of the exclusive rights set out in the US Copyright Act, and they have considerably expanded the reach of the fair use exemption. They have strained statutory and common law regimes of secondary liability and prompted the development of a ‘volition’ predicate to primary liability. While caselaw concerning non-digital subject matter or scope of protection has also abounded – including the Supreme Court’s rejection of constitutional challenges to Congress’s power to extend the copyright terms of existing works and to restore copyright to certain foreign works that had fallen into the public domain in order to comply with international obligations; the Court’s failure to clarify the impenetrable statutory standard for the protection of applied art; and the Court’s interpretation of the first sale doctrine to establish a rule of international exhaustion – space constraints compel the choice to confine this overview to the digital domain.
Ginsburg, Jane, Twenty Years of US Digital Copyright: Adapting from Analog (June 30, 2022). Columbia Public Law Research Paper No 14-708, forthcoming, Eleonora Rosati and Hayleigh Bosher, Twenty Years of IP Kat (Oxford University Press 2023), forthcoming.
First posted 2022-07-21 10:00:22
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