Legal Internalism in Modern Histories of Copyright

Intellectual Property, Copyright and Trademark, Networks, the Internet, and Cloud Computing, Internet and Media and Content

Article Snapshot

Author(s)

Shyamkrishna Balganesh and Taisu Zhang

Source

Harvard Law Review, Vol. 134, pp. 1067-1130, 2021

Summary

Process concerns, including formal registration requirements and the rule of law, are important to copyright lawyers and policymakers. Recent histories of copyright law neglect these procedural elements.

Policy Relevance

Procedural concerns shape changes to copyright law worldwide.

Main Points

  • Professional participants in a legal specialty develop a unique perspective on that specialty, that is, “legal internalism.”
     
  • Professional participants treat their specialty as if its rules serve as normative standards, are complete, and are logically coherent, even if the rules do not embody those qualities.
     
  • Three recent interdisciplinary histories of copyright law add to our understanding of factors affecting the evolution of copyright law, but neglect the role of legal internalism.
     
    • Who Owns the News? A History of Copyright considers the role of special interests in evolution of copyright for news.
       
    • Pirates and Publishers: A Social History of Copyright in Modern China examines the history of copyright in China.
       
    • Authors and Apparatus: A Media History of Copyright, describes how technological change affects copyright.
       
  • Legal internalism consists of a set of procedural intellectual commitments rather than substantive values, and considering this procedural dimension is important to understanding copyright history.
     
    • Who Owns the News? fails to recognize that an early case denying copyright protection for news was problematic because of controversy over the role of formalities in copyright law.
       
    • Pirates and Publishers does not discuss the importance of the rule of law to the evolution of copyright in China.
       
    • Authors and Apparatus neglects the importance of a need for formal rules embodied in statute law to “fair use” in copyright.
       

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