From Custom to Law in Copyright

Abstract

This paper explores two situations where custom may have been misperceived as trumping copyright law. The first part considers why lawyers can copy many practice-related documents without permission and explains why those reasons do not apply to other documents that cannot be so freely copied. The second part considers how schools' customary disinterest in owning copyright in academic employees' works has inappropriately influenced the outcome of unrelated litigation. In both parts, the paper argues that careful attention should be given to reasons for customary behavior before determining its effect on the law.

The paper was also reprinted in 41 I.P.L.Rev. 637 (2009) (collection of IP articles reputed to be the "best" of the year).

Keywords: intellectual property, copyright, custom and law