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.

Introduction

Generally speaking, copyright theory and practice can be characterized as divided into two broad copyright cultures. On the one hand, in common law jurisdictions, copyright is regarded as a policy instrument designed to serve the public interest in the production and dissemination of works of authorship. Not the author’s right, but the public interest that both generates and justifies that right is the central animating concern of copyright law. On the other hand, in civil law jurisdictions, authorial entitlement is conceived not instrumentally but as a juridical recognition of rights inherent in the act of authorship as such. Not the public interest, but the inherent dignity of authorship is the axis around which copyright revolves. Terminologically speaking, these distinctions recall for us that what the common law world regards as copyright is rather known as author’s right (droit d’auteur, derecho de autor, diritto de autore, urheberrecht, for example) in the civil law world.

Professor Shyamkrishna Balganesh’s paper is a welcome addition to a developing literature in the common law world insisting on the shortcomings or insufficiencies of the instrumentalist paradigm as an account of copyright law. In this vein, the paper starts with the observation that the reduction of copyright law to a series of incentives and limitations to be economically understood loses sight of the specifically legal meaning of copyright law. On that basis, the paper sets out to formulate the juridical normativity of copyright from a private law perspective.

Three interrelated claims are proposed: (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”). I will conclude 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”).

Featured here is the first part of a paper by , Chair in the Legal, Ethical and Cultural Implications of Technological Innovation and Associate Professor at the University of Toronto, Faculty of Law. The paper was originally published in the Harvard Law Review Forum. He has published in the areas of charitable trusts, unjust enrichment, intellectual property, and psychoanalysis and political theory. He is currently working on a book on the public domain in copyright law. The full article can be found .

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The idea that the purpose of copyright law is to provide incentives for creativity is among the most fundamental and most established ideas in North American copyright discourse.[1] There can be no doubt, of course, that copyright discourse in North America is highly contested. Some regard it as nothing less than the site of so-called “copyright wars,” of intense struggles—intellectual as much as practical, political as much as theoretical—between copyright maximalists and copyright minimalists, advocates of high copyright protection and advocates of low copyright protection. [2] This manifest presence of vibrant, vigorous, and vivid controversy, however, obscures the depth of the latent agreement that frames it. Few, if any at all, would contest the bedrock idea that copyright law is about providing incentives for creativity.[3] The pervasiveness of the hold that instrumentalism has over the North American copyright imagination is paralleled only by the ease with which that imagination summarily rejects or dismisses rights-based accounts of copyright law—accounts rooted in a vision of the inherent dignity of authorship.

One of the nodal points of the copyright wars is the ongoing discussion about the expansion of copyright scope and copyright subject matter since the enactment of the Statute of Anne,[4] the world’s first copyright statute, in eighteenth century England. Predictably, whereas copyright minimalists object strenuously to this expansion, copyright maximalists support it. Equally unsurprisingly, both maximalists and minimalists formulate their position from the shared standpoint of instrumentalist copyright theory.

My purpose here is to offer minimalists some words of both caution and comfort. The cautionary aspect is that minimalism ought to be far more suspicious than it actually is about the instrumentalist hegemony in copyright discourse. Instrumentalist discourse is, in my view, part and parcel of the very expansion that minimalism seeks to counter. Copyright protection has consistently expanded since Donaldson v. Beckett [5] affirmed (a) the supremacy of the Statute of Anne over common law copyright, and (b) the still prevailing view that copyright law is not a juridical recognition of rights inherent in the act of authorship but rather a policy instrument designed to promote the public interest in creativity. Thus, historically speaking, copyright expansion has taken place and continues to take place under the supremacy of instrumentalism. To be sure, this historical correlation is not by itself sufficient to persuade us that instrumentalism is necessarily complicit in the constriction of the public domain. It does strike me as sufficient, however, to generate significant unease about any uncritical adoption of the instrumentalist paradigm in the name of the expansion of the public domain.[6]

The comfort I seek to offer is that there are, of course, alternative accounts of copyright law. These accounts are none other than the rights-based accounts that, in its habitual endorsement of instrumentalism, minimalism dismisses far too summarily. One of the major complaints that minimalism levels against rights-based discourse is that, once enshrined as a matter of inherent dignity, the rights of authors under copyright law cannot be easily constrained. With this complaint in mind, I want to emphasize that, on the contrary, rights-based discourse envisions not only the claims of authorship but also, and therefore, those of the public domain as a matter of inherent dignity. The rights-based account of authorship is also a rights-based account of the public domain. My purpose is, in short, to generate minimalist unease about instrumentalism and to evoke the as yet largely unexplored potential of a rights-based minimalism.[7] At the very least, I seek to undo the widespread apprehension that rights-based accounts are necessarily maximalist accounts.

Following a sketch of the shared terrain on which the copyright wars take place (Part II), I make some observations about minimalism as a critical stance seeking to oppose a particular normative conception of copyright law to the realities of copyright expansion (Part III). I then briefly describe the historical correlation between instrumentalism and copyright expansion (Part IV). I conclude with some remarks about the absence in instrumentalist discourse of an account of the necessary role of the public domain in copyright law, and about the presence of such an account in rights-based discourse (Part V).

[1] See William Fisher, Theories of Intellectual Property, in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY 168, 169–73 (Stephen R. Munzer ed., 2001).

[2]  See, e.g., WILLIAM PATRY, MORAL PANICS AND THE COPYRIGHT WARS 1–41 (2009). For discussion of copyright maximalism and copyright minimalism, see Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 285–88 (1996). For discussion of copyright politics, see JESSICA LITMAN, DIGITAL COPYRIGHT (2001).

[3] For examples of such contestation, see ROBERTA ROSENTHAL KWALL, THE SOUL OF CREATIVITY 23, 53 (2010); Abraham Drassinower, Authorship as Public Address: On the Specificity of Copyrightv vis- `a-vis Patent and Trade-mark, 2008 MICH. ST. L. REV. 199; Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533, 1548 (1993); Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287, 303–04 (1988); and Alfred C. Yen, Restoring the Natural Law: Copyright as Labor and Possession, 51 OHIO ST. L.J. 517, 518 (1990). See also Maurizio Borghi & Stavroula Karapapa, Non-Display Uses of Copyrighted Works: Google Books and Beyond, 1 QUEEN MARY J. INTELL. PROP. 21 (2011) (arguing for protection of non-display uses of digital works through data protection law in order to account for authorship rights more adequately than traditional copyright law); Kim Treiger-Bar-Am, Kant on Copyright: Rights of Transformative Authorship, 25 CARDOZO ARTS & ENT. L.J. 1059 (2008) (calling for a recognition of the tradition of authors’ rights extant in the Anglo-American copyright regime).

[4] 1710, 8 Ann., c. 19 (Eng.)

[5] 1774, 1 Eng. Rep. 837 (H.L.)

[6] For varying formulations of that unease, see Anne Barron, Copyright Infringement, ‘Free-Riding’ and the Lifeworld, in COPYRIGHT AND PIRACY 93 (Lionel Bently et al. eds., 2010); Maurizio Borghi, Copyright and Truth, 12 THEORETICAL INQUIRIES L. no. 1, art. 2 (2011), http://www.bepress.com/til/default/vol12/iss1/art2; Maurizio Borghi, Owning Form, Sharing Content: Natural-Right Copyright and Digital Environment, in 5 NEW DIRECTONS IN COPYRIGHT LAW 197 (Fiona Macmillan ed., 2007); Abraham Drassinower, From Distribution to Dialogue: Remarks on the Concept of Balance in Copyright Law, 34 J. CORP. L. 991 (2009) [hereinafter Drassinower, From Distribution to Dialogue]; Abraham Drassinower, A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law, 16 CANADIAN J.L. & JURIS. 3 (2003) [hereinafter Drassinower, A Rights-Based View]. See also Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 350–51 (1970) (arguing that instrumentalist account provides a weak general case for copyright protection); Diane Leenheer Zimmerman, Copyright as Incentives: Did We Just Imagine That?, 12 THEORETICAL INQUIRIES L. no. 1, art. 3, at 29, 54–58 (2011), http://www.bepress. com/til/default/vol12/iss1/art3 (juxtaposing instrumentalist account of copyright law with issues concerning the nature of the creative process).

[7]  See Hugh Breakey, Natural Intellectual Property Rights and the Public Domain, 73 MOD. L. REV. 208 (2010); Abraham Drassinower, Taking User Rights Seriously, in IN THE PUBLIC INTEREST 462 (Michael Geist ed., 2005).

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On July 27, 2007, the Supreme Court of Canada released a significant decision dealing with copyright and parallel imports, [Euro-Excellence]. This paper emphasizes certain aspects of the case with a view to plumbing its contribution to an ongoing juridical conversation in Canada about the nature and scope of copyright protection—that is, a conversation about how to define and how to limit copyright.  The most salient recent moments in that conversation are the well-known Supreme Court of Canada decisions in and .  This paper frames Euro-Excellence as another iteration of issues treated in those landmark decisions.  It sets forth an interpretation of 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 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 an affirmation of the familiar yet often neglected proposition that substantial similarity or even identity between the plaintiff's and the defendant's respective works need not give rise to copyright liability. Neither substantial similarity nor identity are in themselves sufficient for a finding of infringement.  The paper concludes by pointing out that the logic of user rights deployed in CCH and elaborated by Bastarache J. in Euro-Excellence amounts to a questioning of the centrality of the category of reproduction in the copyright system.

The paper, which forms part of Michael Geist's edited collection, ‘From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda’ (Irwin Law) is available through and .

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The 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 (LANGUES ET DROIT D'AUTEUR / LANGUAGE AND COPYRIGHT, Ysolde Gendreau, Abraham Drassinower, eds., Carswell; Bruylant, 2009), 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 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.

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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. 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.

Professor Drassinower's article “From Distribution to Dialogue: Remarks on the Concept of Balance in Copyright Law” is available for download on SSRN .

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The standard of originality in Canadian copyright law has recently undergone significant transformation. Traditionally a jurisdiction that, in the eyes of many, had adopted a 'sweat of the brow' standard, Canada is now a 'skill and judgment' jurisdiction. The shift took place in CCH v. Law Society. This chapter (1) describes and contextualizes the shift; (2) analyzes its presuppositions in respect of the Canadian conception of the purpose of copyright law; and (3) identifies difficulties and ambiguities that may preclude its full development. I argue that the doctrinal shift is in tension with certain aspects of the vision of the purpose of copyright law in the name of which it took place.

Specifically, the concept of a copyright 'balance' between authors and users that CCH deploys in its rejection of the 'sweat of the brow' standard in favour of a the 'skill and judgment' standard is insufficient for the task. This tension between doctrine and vision generates a justificatory vacuum giving rise to difficulties and ambiguities regarding the full development of the landmark shift from 'sweat of the brow' to 'skill and judgment'. In that vein, I speculate as to the conditions for the possibility of a resolution of that tension. My point is that, contrary to appearances, the historical struggle between originality schools has not been overcome. Rather, it has transmuted into a struggle between a value paradigm and an authorship paradigm of copyright law. Moving beyond the justificatory vacuum besetting the shift from 'sweat of the brow' to 'skill and judgment' would require unambiguous adoption of the authorship paradigm.

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