Centering the copyright system on the obligation not to copy relegates the public domain in copyright law to the periphery of the copyright system. The view that the defendant’s duty not to copy is the core of copyright law misses the richness and fruitfulness of copyright law as an institutionalized distinction between mere copying and wrongful copying. Fundamentally, what turns on this distinction is the possibility of broaching the sphere of permissible copying not merely as an empty field devoid of core juridical import, but rather as an irreducible indication of the genuinely constitutive depth at which copyright law captures not only the wrongfulness but also the lawfulness of copying. Just as the idea/expression dichotomy is as much about the free availability of ideas as it is about the duty not to copy expression, so is copyright law generally as much about the defendant’s as it is about the plaintiff’s authorship.
Wednesday, June 27, 2012
Highly recommended: Abraham Drassinower on copyright and copying
Abraham Drassinower, Copyright is Not About Copying, 125 Harvard Law Review Forum 108 (2012). Short and excellent.