Volume 70

Issue 1

Editor's Note

In this issue, we are pleased to offer four articles that illustrate the diverse scholarship present in the field of copyright.

We begin with Maria A. Pallante’s insightful Brace Lecture The Art and Innovation of Exclusive Rights. In it, she draws on her rich and deep experience as a copyright lawyer and Register of Copyrights to remind us that the copyright’s exclusive rights often benefit creators and creativity in unexpected ways that unfold over time. She counsels that the value of exclusive rights may not always be apparent, but that does not mean that social benefits do not exist. It therefore may not be wise to precipitously limit the rights granted to authors.

Next, Shyamkrishna Balganesh (who will give our next Brace Lecture) provides a fascinating look at the jurisprudence of Learned Hand, the author of many influential copyright opinions. In his article Learned Hand’s Copyright Law, Balganesh attributes Hand’s long-lasting effect on copyright to Hand’s particular judicial method. This method allowed Hand to artfully balance copyright’s many nuances and demands in a cogent, coherent way that Balganesh recommends to judges today.

Our next article is Mala Chatterjee’s Understanding Intellectual Property: Expression, Function, and Individuation. In it, she conducts a nuanced comparison between copyright and patent law to argue that doctrinal differences between the two fields can be explained by copyright’s “author individuation” and patent law’s “structure individuation.” Among other things, Chatterjee explains how this supports the existence of the independent creation defense in copyright and its absence in patent.

Finally, we have Answering Question One in Google v. Oracle: The Creativity of Computer Programs by Ralph D. Clifford, Firas Khatib, Trina C. Kershaw, and Adnan El-Nasan. The authors argue that the range of expression and degree of creativity in software is much greater than many suppose. Drawing upon empirical work they conducted, they assert that the creativity of computer programmers compares favorably with that of authors in more conventional copyright-protected fields such as literature. Accordingly, they concluded that copyright should protect computer software as broadly and aggressively as it does other, more conventional
works.

As always, we welcome the comments and suggestions of our readers.

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