Causing Copyright

78 Pages Posted: 22 Feb 2016 Last revised: 14 Jul 2017

Date Written: 2017

Abstract

Copyright protection attaches to an original work of expression the moment it is created and fixed in a tangible medium. Yet, modern copyright law contains no viable mechanism by which to examine whether someone is causally responsible for the creation and fixation of the work. Whenever the issue of causation arises, copyright law relies on its preexisting doctrinal devices to resolve the issue, in the process cloaking its intuitions about causation in altogether extraneous considerations. This Article argues that copyright law embodies an unstated, yet distinct theory of authorial causation, which connects the element of human agency to a work of expression using the myriad goals and objectives of the copyright system. This theory of causation is best realized through an independent requirement — of copyrightable causation — that the creator of a work will need to satisfy in order to qualify as its author for copyright protection. Much like copyright’s theory of authorial causation, the requirement would embody both a factual dimension (creation in fact) and a normative component (legal creation). The former would examine the connection between the work and the putative author as a purely epistemic matter, while the latter would do so through an evaluative understanding of copyright’s myriad goals and policies. The Article unpacks the structural and substantive foundations of authorial causation in copyright law, and argues that making it a new requirement for protection would introduce a measure of coherence and rationality into the question of copyrightability, while simultaneously allowing copyright law to overtly affirm and promote its various institutional ideals.

Keywords: causation, authorship, proximate cause, copyright

JEL Classification: O34

Suggested Citation

Balganesh, Shyamkrishna, Causing Copyright (2017). Columbia Law Review, Vol. 117, p. 1, 2017; U of Penn Law School, Public Law Research Paper No. 16-8. Available at SSRN: https://ssrn.com/abstract=2735850

Shyamkrishna Balganesh (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
215-573-7780 (Phone)

HOME PAGE: http://sbalganesh.law.upenn.edu

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