This comment was prepared for the Harvard Law Review Forum “The New Private Law” Symposium (October 2011) as a response to Shyamkrishna Balganesh’s “The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying,” 125 Harvard Law Review 1664 (2012).

Balganesh’s article 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 Abraham Drassinower, 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 here.

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