The Normativity of Copying in Copyright Law
Balganesh, Shyamkrishna, Duke Law Journal
Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough--or "substantially similar"--for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright's requirement of "substantial similarity" has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright's substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the functioning of other areas of private law, such as tort law, substantial similarity remains an unappreciated source of flexibility and pluralism in copyright law. It allows courts to modulate the copyright entitlement's operational robustness by altering the amount of exclusivity that a work obtains, based on different criteria, and thereby introduces "thickness" as an altogether new dimension of the entitlement. It also renders the adjudication of copyright infringement overtly pluralistic by sequencing--a multicriterion decision-making process long known to the common law--substantial similarity allows copyright law to affirm both utilitarian and personality-based considerations, while prioritizing the former over the latter systemically. Viewing copyright law through the lens of substantial similarity sheds new light on the compatibility of the institution's goals and purposes, copyright's structure as a "property" right, and the role of courts within its overall scheme.
TABLE OF CONTENTS Introduction I. "Substantial Similarity" in Copyright Law A. Disaggregating "Copying" B. An Intermediate Step: The Idea of "Thickness" C. Similarity as Wrongfulness D. The Flexibility of Substantial Similarity II. Substantial Similarity and Incommensurability A. Copyright Adjudication as a Form of Multicriterial Decision Making B. Conceptual Sequencing as a Partial Solution C. Accommodating Plural Values in Copyright Law 1. Thickness as Copyright's Utilitarian Inquiry 2. Similarity as Copyright's Correlative Inquiry 3. Justifying the Sequencing III. The Benefits of Substantial Similarity A. Fine Tuning Copyright's Upstream and Downstream Guidance B. Candor and Clarity in Copyright Reasoning C. Streamlining Fair Use IV. The Sequenced Substantial Similarity Analysis in Action A. Moving Beyond Fair Use in Harper & Row B. Harper & Row Through Copyright's Sequenced Mechanisms 1. Thickness 2. Similarity 3. Fair Use Conclusion
In their exuberance to describe copyright as a form of intellectual "property," courts and scholars all too easily ignore what is perhaps copyright law's singular identifying structural attribute: its emphasis on copying. (1) Dating back to its origins, copyright law has operated principally by granting its holder the exclusive right to copy a creative work of authorship, and actions for copyright infringement have ever since revolved entirely around a showing of copying) Although the scope of what copying entails and extends to--distribution, performance, adaptation, and the like--has no doubt expanded over time, it remains equally true that copying, in one form or another, remains the true sine qua non of copyright law. (3)
Perhaps more importantly, to the extent that copyright law's emphasis on copying is ever analyzed and compared to other intellectual property regimes, it is done so in its evidentiary, or probative, dimension. (4) Proof of copying is really thought to represent the extent of the institution's engagement with the idea of copying. (5) What this view …
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Publication information: Article title: The Normativity of Copying in Copyright Law. Contributors: Balganesh, Shyamkrishna - Author. Journal title: Duke Law Journal. Volume: 62. Issue: 2 Publication date: November 2012. Page number: 203+. © 2009 Duke University, School of Law. COPYRIGHT 2012 Gale Group.
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