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Article by Balganesh challenges critics of copyright claims intended to censor content

October 07, 2019

In a forthcoming article in the Vanderbilt Law Review, University of Pennsylvania Law School Professor of Law Shyam Balganesh confronts the critics of “censorial copyright claims,” claims where the creators of personal and often unpublished works – such as diaries, intimate photos and videos, personal letters, or even selfies – use copyright law to sue those who publish and distribute those materials without permission. While many scholars have argued that the interests addressed by such claims are better protected through privacy tort law, in “Censorial Copyright,” Balganesh offers a theoretical framework for understanding and analyzing them. He argues that the push to eliminate censorial claims from copyright law rests upon a fundamental misunderstanding of copyright’s history and purpose.

Balganesh is a Professor of Law and Co-Director of the Center for Technology, Innovation & Competition (CTIC) at the Law School. His scholarship focuses on understanding how intellectual property and innovation policy can benefit from the use of ideas, concepts and structures from different areas of the common law, especially private law.

“U.S. copyright law is today justified in exclusively utilitarian terms,” writes Balganesh. The theory of “creator incentives” states that copyright law drives the production of original works of expression by promising creators and authors “limited market exclusivity[.]” Thus, “copyright’s very raison d’être is therefore seen to lie in its role as a market-based incentive for creative production.” However, he explains, there are also non-economic factors “that motivate an individual’s decision of whether, when, and how to embrace the identity and title of ‘author.’” Among those factors are a creators’ concern for how their works are imbued with their personalities and the way they might reflect upon the creator’s reputation. Because the prevailing understanding of copyright law is focused on the commercial value of the works at issue, many scholars and courts consider creators’ non-economic interests to be wholly separate and best protected by other legal doctrines rather than censorial copyright claims.

Expressive work that is subject to copyright claims aimed at censoring its publication or dissemination commonly consists of “content that its author does not want revealed publicly, which on its face also discloses the author’s identity,” writes Balganesh. For example, a victim of revenge pornography recently brought a successful copyright infringement lawsuit regarding self-taken intimate photos, which were then published and disseminated without their consent. Indeed, under current law, unpublished works like those photos may be the subject of both distribution and display right claims under the copyright statute.

Balganesh notes that recognition of the validity of censorial copyright claims is not a new phenomenon. Tracing the history of censorial claims within Anglo-American copyright law from 1710 through the present day, Balganesh asserts that in fact, “[c]ensorial copyright claims … pre-date copyright’s utilitarian turn, and thus are as legitimate in the copyright landscape as are other economically driven claims.” Nevertheless, he notes, at least since Samuel Warren and Louis Brandeis authored an essay advocating the creation of an independent set of privacy torts within American common law, the existence of claims such as defamation, false light, and public disclosure of private facts creates some skepticism as to whether creators need to use copyright law to protect their non-economic interests. However, he notes, “[e]ven if Warren and Brandeis are seen to have made a compelling argument for the development of independent privacy torts and the existence of a ‘right to privacy,’ nowhere does their analysis recommend eliminating the personal claims that they identify from the ambit of copyright law.”

In the concluding section of the article, Balganesh offers a mechanism by which courts might adjudicate censorial copyright claims while accounting for free speech concerns and issues of newsworthiness, as well as how best to remedy the non-economic harms imposed by unauthorized publication and distribution. In particular, he explains how the existing fair use doctrine can be employed to avoid the risk of undue censorship that has contributed to much of the concern about censorial claims. Such claims ought to be allowed to proceed, he argues, even if they fall outside the exclusively economic focus of modern copyright law as envisioned by the theory of creator incentives.

“Copyright has always been an institution that has affirmed a plurality of normative values, and the persistence of censorial copyright claims confirms this reality,” writes Balganesh. “Courts and scholars might find this messy, complex, and theoretically inelegant; yet it represents the story of copyright’s evolution, which is hard to ignore or erase.”