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Beyond Creativity: Copyright as Knowledge LawThe Supreme Court’s copyright jurisprudence of the last 100 years has embraced the creativity trope. Spurred in part by themes associated with the story of “romantic authorship” in the 19th and 20th centuries, copyright critiques likewise ask, “Who is creative?” “How should creativity be protected (or not) and encouraged (or not)?” and “ Why protect creativity?” Policy debates and scholarship in recent years have focused on the concept of creativity in framing copyright disputes, transactions, and institutions, reinforcing the notion that these are the central copyright questions. I suggest that this focus on the creativity trope is unhelpful. I argue that digital technologies and the explosion of amateur art challenge the usefulness of creativity as the organizing principle for copyright law. I propose that knowledge should be restored as copyright’s core concept. I illustrate that argument with the art and writing of Vincent van Gogh, who is often used to illustrate the idea of the prototypically creative author, and I draw out some implications from the proposal in terms of legal doctrines that relate to producing, distributing, conserving, accessing, and sharing knowledge.
Creativity and CraftI revisit the distinction between intangible works of authorship and tangible objects, which is a fundamental proposition of modern copyright law. I suggest that reconsidering that distinction, at least in part, may expand the range of possibilities for aligning modern copyright as an economic construct with the historical roots of copyright and with ethical claims about authorial expression. Revisiting that distinction also may provide contemporary lawyers and policymakers with a much-needed tool for managing challenges posed by digital technology.
Catch 1201: A Legislative History and Content Analysis of the DMCA Exemption Proceedings17 USC Section 1201(a)(1) prohibits circumventing a technological protection measure (TPM) that effectively controls access to a copyrighted work. In the name of mitigating the innocent casualties of this new ban, Congress constructed a triennial rulemaking, administered by the Register of Copyrights, to determine temporary exemptions. This paper considers the legislative history of this rulemaking, and it reports the results of a systematic content analysis of its 2000 and 2003 proceedings. Inspired by the literature on political agendas, policymaking institutions, venue shifting, and theories of delegation, we conclude that the legislative motivations for Section 1201 were laundered through international treaties, obscuring the anticircumvention clause’s domestic origins. Further, we conclude that the exemption proceeding is constructed not to protect noninfringing users, but to limit courts’ ability to exonerate them via the traditional defenses to copyright infringement. We then conduct a content analysis of the first two proceedings, conducted in 2000 and 2003. Exemption proponents generally interpret the law’s intent in terms of policy goals such as fair use, whereas opponents see jurisdictional, procedural, and definitional obstacles to the granting of exemptions. The Register of Copyrights’ interpretation of the law closely resembles that of opponents and, on more than one key point, she refers proponents back to Congress. We conclude that the Register has constructed a venue that is hostile to the interests of noninfringing users; in light of congressional rhetoric to the contrary, this constructs a catch-22 for many who earnestly wish to engage in otherwise legal activities.
Služba informační společnosti v prostředí sítě Internet a autorské právoInformation society service in the Internet environment and copyright The creation and the development of the Internet is one of the milestones of the technological, social and informational development of the human mankind. The Internet has developed from a merely technological tool into the techno-social phenomenon. For many people, including me, the Internet has become ultimately prevailing means of communication. The number of users of the Internet has risen to the extent that Internet has become the most important mass medium of today's world. It is not only about communication, but rather Internet has also the informational role, it is also the centre of the entertainment, business place and place for social interaction. Nevertheless the Internet has from its beginning profoundly changed. The development is said to be the evolution from the Web 1.0 to the Web 2.0. It means that the end users of the Internet became more involved in the process of creation of the content. This evolution brings many questions, among others the liability for the content made available on the Internet. In the mass and anonymous environment of the Internet it is very difficult to track down the infringer as the most common infringement appearing on the Internet is the one of copyright. The system of copyright...
The RIAA, the DMCA, and the Forgotten Few Webcasters: A Call for Change in Digital Copyright RoyaltiesEmerging webcasting technology is playing an increasing role in modem society. The ease of use of webcast technology has brought about an increased user base as well as an increased viability for small webcasting businesses. However, the mix-tape genre of independent Internet radio has been financially and legislatively abused as a forerunner of rapidly advancing digital technology and concerns over protecting copyright royalties. This Note argues for a revision of the DMCA to provide a middle ground between protecting copyrighted works and allowing the continued existence of Internet radio.