27 Pages Posted: 2 Mar 2012 Last revised: 27 Feb 2013
Date Written: May 2012
Modern discussions of copyright readily treat the institution as a government-sponsored mechanism for encouraging creativity. In so doing, they all too easily ignore its core private law architecture and the unique form of legal normativity that this brings to the institution and its functioning. This Essay unpacks copyright’s private law complex, and in so doing, makes three claims: First, that copyright theories ought to pay greater attention to the analytical structure of its entitlement framework, and the ways in which this structure is intended to operate in practice. Discussions of copyright law would do well to understand that the institution’s exclusive rights framework functions almost entirely through its creation of an obligation not to copy original expression. Second, that copyright can be usefully re-conceptualized as revolving around the “wrong of copying,” which originates in the right-duty structure that it creates. Reorienting discussions along these lines would allow for a more direct focus on why it treats copying as a wrong, what actions constitute the wrong, and the plural values that fruitfully co-exist within the private law structure of the institution. Third, that focusing on copyright’s internal logic need not come at the cost of its instrumentalism. To the contrary, it entails mediating the institution’s instrumentalism through its private law structure on a nuanced, pragmatic basis.
Keywords: copyright, private law theory, obligatory
JEL Classification: K11
Suggested Citation: Suggested Citation
Balganesh, Shyamkrishna, The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying (May 2012). Harvard Law Review, Vol. 125, Pg. 1664, 2012; U of Penn Law School, Public Law Research Paper No. 12-21. Available at SSRN: https://ssrn.com/abstract=2014495