I am pleased for the Journal to offer our readers 4 diverse and informative articles about copyright law in Volume 68:3.

The issue begins with the 2021 Brace Lecture, which was delivered by Professor Donald Vaver, of the Osgoode Hall Law School in Toronto, Canada. In User Rights: Fair Use and Beyond, he gives us astute commentary about the course of fair dealing in Canada and its possible implications. He frames for us a familiar, yet ever-important, question: Is it wise to think about what he calls “user rights” — a set of rights that include fair dealing (the Canadian analog of American fair use) — as an exception to copyright, or should they be considered part and parcel of copyright’s basic scheme? Professor Vaver persuasively sets the stakes implicit in the question. If user rights are an exception, then it becomes presumptively normal (and therefore correct) to give copyright holders control over most uses of copyrighted works. By contrast, if user rights are not an exception, they become part of the rule. Copyright no longer presumptively means control by the copyright holder. Rather, user rights become entitled to equal presumptions of correctness. Professor Vaver describes for us how Canadian law has moved towards stronger understandings of user rights and asks whether this has applications beyond Canada’s borders and beyond the field of copyright.

Next, we have Professor Shyamkrishna Balganesh’s article Authoring the Law. Here, Professor Balganesh studies the government edicts doctrine, which treats as uncopyrightable the expression of state lawmakers exercising their lawmaking function. He notes that the doctrine has long lacked a convincing theoretical explanation. Even the recent Supreme Court opinion in Georgia v. Public.Resource.Org did not convincingly explain why state lawmakers are not authors when they write legislation. Professor Balganesh explores notions of authorship to argue that lawmakers are indeed not authors because authorship, as understood in copyright, requires explicit connection to an individual (or individuals) authorial personas who express their individual thoughts. By contrast, lawmaking does not involve connecting the text of law to particular authorial persons. Instead, law and lawmaking are fundamentally impersonal, rendering authorship impossible in that context.

Our third article is Copyright’s Administrative Law by Professors Dave Fagundes and Saurabh Vishnubhakat. This piece offers a comprehensive look at the connection between copyright and administrative law. The authors note that scholars rarely write about copyright from an ad-vi Journal, Copyright Society of the U.S.A. administrative law perspective, and they study the history of copyright to show the link between it and administrative law. They contend that delegating various functions to the Copyright Office could be problematic in the absence of a theory of copyright’s administrative law. This leads to suggestions for operational reforms intended to better take advantage of the Copyright Office’s core competencies. Finally, Thomas Hemnes, a principal at GTC Law Group, closes our issue with Copyright and the Limits of Textualism. In this essay, Mr.Hemnes uses the appointment of Justice Amy Coney Barrett to the Supreme Court to analyze the impact of textualism on the future of copyright. Justice Coney Barrett raised this topic for Mr. Hemnes because of her professed allegiance to what he calls High Textualism – the notion that the meaning of law is fixed in text. Mr. Hemnes uses debates about textualism involving other members of the Court to open a discussion about the limits of textualism and how, especially in a field like copyright, the meaning of key concepts will likely never be fixed in text. For someone like Mr.Hemnes, this is not necessarily a problem. He points out that many copyright decisions use policy and pragmatism to create plausible bases for deciding cases, if not fixed meaning. He then wonders what strict textualists will do when asked to interpret copyright, and he uses Star Athletica to illustrate how textualism alone can make copyright harder to understand, not easier. He closes with the hope that textualists will see that, at least in copyright, more than words must be considered to interpret the law well.

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