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- Title
THE EMPEROR HAS NO COPYRIGHT: REGISTRATION, CULTURAL HIERARCHY, AND THE MYTH OF AMERICAN COPYRIGHT MILITANCY.
- Authors
Tehranian, John
- Abstract
This Article subverts the myth of American copyright militancy by providing a more nuanced view of our enforcement regime and detailing how, in the age of mechanical (and digital) reproduction, procedural nicities establish cultural hierarchy through the selective restoration of Benjaminian `aura' to creative works. As it turns out, the Emperor has been sold a suit of copyright that leaves a surprising number of authors naked-without sufficiently meaningful remedies for infringements of their creative output. Copyrighted works are effectively placed into a hierarchy of protection that, in many ways, safeguards creators less vigorously than regimes in other countries. Through the use of ostensibly neutral formalities, the current system privileges the interests of repeat, sophisticated rights holders, often at the expense of smaller, less sophisticated creators. Moreover, existing law practically encourages certain kinds of infringement. In the end, sophisticated players enjoy powerful remedies when enforcing their copyrights. They dangle the legal Sword of Damocles-draconian statutory damages-over the heads of accused infringers, threatening to hand defendants their heads on a platter with more fervor than Salomé's dance (to licensed music, of course). By sharp contrast, when they function as users of intellectual property (something all creators do), these same players often face only the most paltry of penalties for unauthorized exploitation-even when they infringe willfully. Our copyright regime therefore beatifies the works of elites-consecrating their cultural production as sacred texts and subjecting any use to permission and payment-while rendering the creative output of the rest of society into fodder for unauthorized manipulation and commercialization. The point of this analysis is not to call for even greater copyright protection for all creators. Rather, this Article deconstructs the beneficiaries of the existing regime and highlights the need for holistic reform that equalizes protection among different classes of authors and rights holders while also balancing the interests of copyright users.
- Subjects
UNITED States; COPYRIGHT; COPYRIGHT infringement; LEGAL remedies; DEFENDANTS
- Publication
Berkeley Technology Law Journal, 2009, Vol 24, Issue 4, p1399
- ISSN
1086-3818
- Publication type
Article