May 11, 2009 by Jane Ginsburg
Jane Ginsburg is Morton L. Janklow Professor of Literary and Artistic Property Law at Columbia Law School and Co-director, Kernochan Center for Law, Media and the Arts. Professor Ginsburg is also a member of IP Osgoode’s International Advisory Council.
Professor Ginsburg has a new article forthcoming in WORKING WITHIN THE BOUNDARIES OF INTELLECTUAL PROPERTY, Rochelle Cooper Dreyfuss, Harry First, Diane Leenheer Zimmerman, eds., forthcoming, Oxford University Press (2009).
This article addresses the extremes of private ordering, and the extent to which the principal multilateral copyright instruments, the Berne Convention and the TRIPs Accord, limit the range of State responses to the problems encountered at the far ends of the copyright-contract spectrum. At one end, we encounter private ordering at its most aggressive, in which private parties enter into agreements (or, more likely, the stronger party coerces the weaker parties, who may be mass market consumers) to protect subject matter or rights excluded from the ambit of copyright’s exclusivity. At the other end, the difficulties arise not from overweening sellers forcing their way with timid buyers, but from failure to find the seller at all. The buyers, would-be copyright exploiters, are unable to locate the right holders from whom to negotiate a license to use their works. In this case, no contract can be concluded, unless the State steps in for the absent right holder. In the first case, a contract has been concluded, but at a cost that the State could not exact were it to seek the same result through public ordering.