Washington, D.C., partner Mike Remington co-wrote an article for Intellectual Property China titled, “The Balance of Interests in U.S. Copyright Law.” Mike wrote the article with Kexin Li, a former Research Fellow for the American Antitrust Institute who worked out of the firm’s Washington, D.C. office. Kexin now practices antitrust law at Freshfields Bruckhaus Deringer in Beijing.
The article explains that in the United States, there persists a belief that a well-functioning copyright system will balance the interests of copyright owners, distributors and consumers. The authors outline the constitutional basis for U.S. copyright protection and how Congress has historically emphasized that the enactment of copyright legislation is based upon the grounds that the welfare of the public will be served through the progress of science and the useful arts.
They discuss the challenges inherent in balancing the interests of this so-called “triumvirate of copyright players” in the digital age.
“The development of a vibrant, competitive, and sometimes destructive distribution zone has made the three-legged stool very unsteady,” they say. “All the while, the economic implications of the copyright industries are expanding wildly in a global environment.”
Mike and Kexin discuss statutory developments in the law, which they say will likely “exceed Chinese readers’ imagination.” Despite the myriad amendments, common law interpretations and ever-growing complexity of U.S. copyright law, the authors note Register Maria Pallente’s assertion that “the law is showing the strain of its age.”
The courts, too, play their role in applying the law to contemporary situations to determine what Congress intended. The authors discuss four recent cases that demonstrate this important judicial function.
Finally, the authors discuss the receptivity of copyright law to societal changes, which they describe as a systemic response to “new threads of creative expression.” To fill the gaps between Congress and the court, they note that proposals have been made to give the Copyright Office substantive rulemaking authority. It is currently unclear whether Congress will accede to this.
Mike and Kexin conclude that while achieving copyright balance in the United States is wrought with tension, debate and eventual compromise, it is thought to be “well worth the effort.”