Volume 68

I am pleased for the Journal to offer our readers five interesting perspectives on copyright law in Volume 68:1.

The issue begins with the Brace Lecture, which was delivered by Professor Christopher Sprigman. In What Does Antitrust’s Revival Mean for Copyright?, he asks how the new “neo-Brandeisian” approach to antitrust might affect copyright and content industries. Professor Sprigman describes the rise of neo-Brandeisian approach as a reaction to the traditional and conventionally dominant Chicago School of antitrust and its skepticism about the value of antitrust enforcement in various contexts, including vertical mergers. Among other things, neo-Brandeisians expand antitrust’s concerns beyond the narrow consumer price focus of the Chicago School to the effects of economic and political concentration. This expansion provides theoretical support for increased antitrust enforcement against large entities like tech giants. Professor Sprigman then asks thoughtful questions about how a Justice Department inspired by neo-Brandeisian thinking might act towards performing rights organizations. He raises the possibility that the status quo, including existing consent decrees, may not survive in their present form and that “a lot of copyright lawyers are going to be reading up on antitrust law in the coming years.”

Next, we have a Letter from New Zealand authored by Professor Graeme Austin. Here, he uses the recent New Zealand Supreme Court decision in the Megaupload case of Ortmann et al. v. United States of America to discuss three items of interest. First, he analyzes at some length the difficulties faced by the New Zealand Supreme Court when applying law not written with criminal digital piracy in mind. Second, he illustrates how international law has important effects on how a court understands its domestic law. Finally, he discusses how so-called “copyright transplants” (aspects of one nation’s law incorporated into another nation’s law) can be reinterpreted in ways not consistent with the understanding of that law in its country of origin. He closes with some thoughts about the decision’s benefits and shortcomings.

Our third article is a piece by Professor Kevin Greene in which he argues that termination provisions in the Copyright Act perpetuate the “wholesale expropriation” of works by African American artists. In doing so, Professor Greene notes that many seminal hip hop works are now reaching a time in which their original authors might exercise termination rights, thereby enabling a second opportunity to monetarily benefit from their creations. Unfortunately, he notes, the mechanics of termination are so complex that many authors will not successfully exercise them. He con- tends that this hardship will fall disproportionately on African American authors, in part because of systemic disadvantages they face.

Fourth, we offer a piece written by Robert Kasunic, the Associate Register of Copyrights and Director of Registration Policy and Practice at the United States Copyright Office. Not surprisingly, Mr. Kasunic writes about registration, and in doing so he focuses not on the well-known statutory benefits of registration, but on “the more nuanced benefits that the registration process provides to both applicants, potential defendants, and the courts.” In so doing, his article offers our readers a real insider’s view about the process of registration and its beneficial effects on the copyright system as a whole.
In our final article, Professor Glynn Lunney uses The Copyright Tax to analyze copyright law as if it were a tax. His inspiration comes from Macaulay’s assertion that copyright is “a tax on readers for the purpose of giving a bounty to writers.” Lunney agrees with Macaulay, noting that copyright acts like a tax by increasing the price paid by consumers for copyrighted works and paying the money raised to copyright holders. This leads him to ask 3 questions: how large is the copyright tax, who pays it, and what do taxpayers receive in return? He answers the first question through the analysis of data about prices paid for nineteenth and twentieth century books, concluding that the copyright tax is in the neighborhood of 50%. He goes on to observe that this tax is collected in higher prices paid by consumers. He then investigates the third question by studying the application of sound recording copyrights in the United States, and whether it resulted in more and better works for the public. He presents new data gleaned from Spotify and last.fm stream counts to conclude that there is no positive statistically significant correlation between music industry revenue in one year and output in the next. In fact, he asserts that more money in one year generally meant less or poorer quality music in the next. These conclusions will generate much debate whether copyright delivers on its mission to promote the progress of art.

As always, I welcome comments from our readers.

Alfred C. Yen
Professor of Law and Dean’s Distinguished Scholar
Boston College Law School
alfred.yen@bc.edu