University of California, Berkeley - School of Law
After U.S. accession to the Berne Convention in 1988, many scholars have expected an increasing convergence between U.S. and EU copyright law. Even though some developments in U.S. copyright law evidence a move towards the European model, this article concludes that deep differences will continue to exist between U.S. and EU copyright law, chiefly because of the influence of economic thinking on the scope of copyright law in the U.S. and the influence of the U.S. Constitution. The economic and constitutional underpinnings of U.S. copyright law give rise to a legal regime whose principles and purposes fundamentally differ in many respects from the 'author-centric' regimes of EU nations. Although the article deals with the historical moorings of U.S. copyright law, it offers numerous examples to demonstrate how economic and constitutional reasoning manifest themselves in modern judicial pronouncements on everything from copyright protection for computer programs to the unprotectability of unoriginal data compilations. These decisions have used economics and the Constitution to adapt U.S. copyright law to new technological challenges.