TWO HALVES OF THE COPYRIGHT BARGAIN: DEFINING THE PUBLIC INTEREST IN COPYRIGHT
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7/12/2013 4:33 PM
TWO HALVES OF THE COPYRIGHT BARGAIN:
DEFINING THE PUBLIC INTEREST IN COPYRIGHT
SHERWIN SIY*
In her presentation, Professor Katyal discussed the fact that copyright allows the creation of a private property right in order to promote the public good.1 This “copyright bargain” is enshrined in the
Constitution; in order to meet the ultimate aim of promoting the
“Progress of Science and useful Arts,” the public will subsidize authors and inventors by granting them exclusive rights to their “Writings and
Discoveries.”2
There are two particular aspects of the copyright bargain that I’d like to address. One covers the end goal and how “public interest” is defined. This question has both theoretical and practical effects, as the public interest is sometimes used by the courts in determining remedies.
The second deals with the alienable nature of copyrights. In order to fulfill the constitutional purpose of benefitting and, thus, incentivizing authors, Section 106 of the Copyright Act grants authors certain exclusive rights. Yet authors and copyright holders are often distinct; when this occurs, additional benefits accruing to copyright holders do not necessarily fulfill the constitutional copyright bargain.
Participants in current copyright debates often identify themselves by who they name as the ultimate intended beneficiary of copyright: authors or the public at large. Recently, in her testimony before the
House IP Subcommittee, Register of Copyrights Maria Pallante said that authors’ interests are the public interest in copyright.3 In her statement, Register Pallante may have been attempting to reconcile the increasing rights of copyright holders with the calls for a copyright regime that respects the public interest.
Permission is hereby granted for noncommercial reproduction of this Article in whole or in part for education or research purposes, including the making of
7/12/2013 4:33 PM
TWO HALVES OF THE COPYRIGHT BARGAIN:
DEFINING THE PUBLIC INTEREST IN COPYRIGHT
SHERWIN SIY*
In her presentation, Professor Katyal discussed the fact that copyright allows the creation of a private property right in order to promote the public good.1 This “copyright bargain” is enshrined in the
Constitution; in order to meet the ultimate aim of promoting the
“Progress of Science and useful Arts,” the public will subsidize authors and inventors by granting them exclusive rights to their “Writings and
Discoveries.”2
There are two particular aspects of the copyright bargain that I’d like to address. One covers the end goal and how “public interest” is defined. This question has both theoretical and practical effects, as the public interest is sometimes used by the courts in determining remedies.
The second deals with the alienable nature of copyrights. In order to fulfill the constitutional purpose of benefitting and, thus, incentivizing authors, Section 106 of the Copyright Act grants authors certain exclusive rights. Yet authors and copyright holders are often distinct; when this occurs, additional benefits accruing to copyright holders do not necessarily fulfill the constitutional copyright bargain.
Participants in current copyright debates often identify themselves by who they name as the ultimate intended beneficiary of copyright: authors or the public at large. Recently, in her testimony before the
House IP Subcommittee, Register of Copyrights Maria Pallante said that authors’ interests are the public interest in copyright.3 In her statement, Register Pallante may have been attempting to reconcile the increasing rights of copyright holders with the calls for a copyright regime that respects the public interest.
Permission is hereby granted for noncommercial reproduction of this Article in whole or in part for education or research purposes, including the making of