At the Core of Copyright Law
Professor Wendy Gordon’s body of work has led to several prestigious scholarly activities, including an appointment to a group of advisors in a clarification of copyright law.
William Fairfield Warren Professor and Professor of Law Wendy Gordon was recently selected to help shape the work of young scholars as a reviewer and commenter at the Yale/Stanford/Harvard Junior Faculty Forum, this year hosted by Harvard Law School.
The annual forum encourages the work of recently appointed, tenure-track faculty by opening a dialogue on what constitutes successful scholarship. Accomplished senior scholars in various fields of law are invited to comment on the merits and methodology of submitted papers to give junior faculty further experience in the pursuit of scholarship and the nature of scholarly exchange.
An internationally recognized and prolific scholar in the field of copyright law, Professor Gordon’s own articles are often anthologized and translated, and have been cited by courts in nations outside the US.
Her most recent publication, “The Core of Copyright: Authors, Not Publishers” (Houston Law Review), which argues that protecting authorial creation constitutes the core of federal copyright, was excerpted in the Law & Economics Prof Blog, and appeared in a multitude of Top Ten lists, including the following SSRN Top Ten lists: Intellectual Property Law, Torts, Entrepreneurship & Law, Law & Economics, Constitutional Law, Copyright & Trademark, and US Constitutional Law: Rights & Liberties eJournal.
“A growing number of commentators take the position that copyright is ‘about’ making publishing and other dissemination industries more efficient and stronger,” Gordon notes in the article. “I encourage the legal community instead to return to the focus that the Supreme Court articulated in Feist Publications, namely, that copyright must serve creative authorship rather than noncreative labor.”
Gordon’s paper uses historical context, economic logic, and patterns of both legislation and court-made legal doctrines to make her points. For example, she examines “the role of publication” in both federal and state law and “the language of the Constitutional clause that empowers Congress to grant federal copyright” to re-examine the appropriateness of allowing Congress to extend copyright for the purpose of protecting disseminating industries.
She points out that when most pro-publisher arguments are closely examined, they often boil down to arguments in favor of serving authorship. Finally, “the speech-restrictive powers that copyright confers are far less suitable tools for aiding disseminators,” she says, “than more conventional forms of Congressional aid.”
Ultimately, Gordon notes, “an approach that gives more importance to dissemination could lead to the one form of copyright ruled out by the Framers, namely, a copyright that lasts forever.”
The demand for Gordon’s scholarship, and the prevalence of the issues she examines, led to her recent appointment as an adviser on a new project launched by the American Law Institute (ALI) entitled Restatement of the Law, Copyright. The project seeks to clarify “the generally applicable parts of copyright law,” including the scope of exclusive rights granted, rules governing ownership and transfer, and defenses to copyright infringement (including first sale limitation and fair use), among other areas.
“The advisers on an ALI project are selected for their particular knowledge and experience of the subject or the special perspective they are able to provide,” notes a statement from the American Law Institute. “As a group, the advisers on a project constitute an intellectually and geographically diverse collection of practitioners, judges, and scholars.”
Gordon is currently working on a project that explores conflicts among different schemes of intellectual-product regulation. The law of utility patent implicitly bars other branches of IP law from giving monopolies in unpatented inventions. Consequently, in order to maintain the dominance of utility patent, the other potentially applicable regimes—most notably copyright, trademark, and design patent—limit their own application where functional products are concerned.
Drawing on each of these non-patent regimes, Gordon articulates a principle of ‘functionality’ that can be useful for clarifying debates not only about what kind of rights copyright or trademark should give the creators of product designs, but also what kinds of rights copyright law should give to the designers of computer programs. She has presented drafts of the article at several law schools in the US and abroad.
Additionally, the Institute for Advanced Studies, affiliated with the University of Bielefeld in Germany, has invited her to present on the ethics of copying. The invitation fits well with her overall agenda to examine how various legal or moral rights against harm, and legal rights of control, interact with justified personal liberties such as free speech. Engagements and appointments such as these offer Gordon the opportunity to help clarify and reform the complex law of copyright, trademark, and related areas to improve those interactions—from varying perspectives such as non-consequentialist morality, neoclassical economics, and internal consistency.