Volume 70

This issue marks a transition from one editor to another. Alfred Yen began this issue, and Elizabeth Townsend Gard completed it. We are very proud of the work we have done. Also note, this issue is being published in August 2024, instead of December 2023. We have updated all of the articles to reflect this delay.

In this issue, we begin with a heartfelt tribute to Marybeth Peters, the former Register of Copyrights, that was conducted over Zoom in March 2023, after her passing in September 29, 2022, at the age of 83. Although neither Fred nor Elizabeth had the privilege of knowing her well, the statements left here by those of us who did establish the incredibly significant and positive impact she made on the field of copyright. Her personal warmth makes the hole left by her passing even more significant. To that end, we have transcribed the event, and added footnotes for reference. The event brought together some of the most important and key people in copyright, all to pay their respects and tell stories about their time with Marybeth. Marybeth was a contributor and friend to the Copyright Society. When she retired, we published tributes then as well. This included written tributes from President George H.W. Bush, President Jimmy Carter, and President Bill Clinton. See 58 J. Copyright Society 1. We imagine this is not the last time that we will look back on her remarkable career and impact on copyright.

In Part II, Articles, we turn to Jessica Silby’s “A Matter of Facts: The Evolution of the Copyright Fact-Exclusion and It Implications for Disinformation and Democracy.” This thorough article traces the development of copyright doctrine on the concept of fact-exclusion. She went back to look at Feist, the 1976 Copyright Act’s legislative history, and even canonical cases including Baker v. Seldon, Burrows-Giles v. Sarony, and Wheaton v. Peters, where she found a debate about not only facts, but the role of human labor, social progress, and technology. She believes that we need further doctrinal clarity for the digital age when it comes to fact-exclusion, which will lead to a richer public domain, something key to the “stabilization of societal institutions, such as law, science and a free press—that are criticial for sustaining U.S. democracy.”

Additionally, we are pleased to feature two works offering different perspectives on the Copyright Claims Board. In one, “Assessing the Copyright Claims Board after Two Years,” Katie Fortney and David Hansen provide a brief evaluation of the CCB, looking at the first two years of accepting claims. They caution that it is perhaps too early to make definitive statements about what is happening, but they express concern that CCB system is challenging and slow for unrepresented claimants to navigate. They report and provide an interpretation on the statistics and offer suggestions on how we might interpret this early data.

In the other, “Copyright Boundaries, Or Making Quilts in the Shadow of the Copyright Claims Board,” Professor Elizabeth Townsend Gard (before she was EIC) offers us a unique perspective through the eyes of an active creator who is extremely familiar with copyright. She shows us how so many of copyright’s fundamental doctrines like the idea/expression dichotomy or the basic standard of originality are extremely difficult for even skilled copyright academic to apply as creator. These problems are even more challenging for lay creators. If copyright is supposed to regulate future creators by guiding them away from infringement and towards creativity, it is fair to wonder whether copyright’s doctrines are really up to the task. Professor Townsend Gard uses the backdrop to ask questions about the CCB. She wonders whether the CCB can work as advertised, and using the Final Determinations, she gleans the potential role of the CCB from the perspective of creating works.

We are also pleased to bring back the feature of updates, what we are calling “Out in the World,” with reports from the U.S. and Canada by Bijou Mgbojikwe, and from Canada, by MacKenzie Stewart. We hope in the coming months to expand to worldwide coverage. If you would like to contribute to worldwide coverage, please email Elizabeth at eic@copryightsociety.org!

Fred: As always, I hope that our readers will enjoy the articles presented in the Journal. For me, this issue will be bittersweet because it will be the last that I work on as Editor-in-Chief. It has been my honor to guide the Journal, but I am a firm believer that any academic journal benefits when many people have the opportunity to help choose and develop its content. Our next Editor-in-Chief will be, in fact, Elizabeth Townsend Gard, and I am really looking forward to the energy and ideas that she will bring.

Elizabeth: I am grateful for the opportunity to take on this next challenge, and for the support that Fred has shown to do this. The Journal of the Copyright Society has been an important part of the copyright community now for more than 70 years. And I am honored to be part of this legacy. To that end, we have brought on a number of people to assist with this issue, and I want to thank them as well. To the Tulane Law School law students, who are serving as our inaugural Copyright Society Fellows, who have worked on each of these pieces: Brijan Kana, our Articles Editor and Co-Managing Editor; Veronica Catanese, our Managing Editor; Tess Bradley, our Senior Research Editor; Kristin Ivey, our Senior Editor and Podcast Producer (coming soon); Rachel Lewis, our Journal and Copy Editor; and the rest of our lovely Copyright Society Journal Fellows.

And to our new Peer Working Board, who tirelessly stepped in to work on each piece as well: Brian Frye, Zvi Rosen, and Zahr Said. And to Bill Mantz, who helped with this transition with his knowledge and patience. And finally, to outgoing Copyright Society President Casey Chisick and the incoming Copyright Society President Daniel Cooper, for this opportunity. And to Kaitland Kubat and her team, Thaís Soalleiro, and Jennifer McGhee, who make this all go.

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

Elizabeth Townsend Gard
John E. Koerner Endowed Professor of Law
Tulane University Law School
townsend@tulane.edu
eic@copyrightsociety.org