Harmonising Copyright Law and Dealing with Dissonance

Harmonising Copyright Law and Dealing with Dissonance

A Framework for Convergence of US and EU law

Sheldon W. Halpern and Phillip Johnson

The highly-regarded authors of this important work explore the constitutional, institutional, and cultural barriers to harmonisation of the copyright laws of the United States and the European Union. They consider these matters in the real world transnational environment in which copyright law operates and suggest that the reality transcends the differences, offering a framework for meaningful harmonisation.

Chapter 3: Why we don’t play well with others: US constitutional constraints on harmonisation of copyright law

Sheldon W. Halpern and Phillip Johnson

Subjects: law - academic, intellectual property law


Conventional wisdom has it that modern English and American copyright law spring from the same source, the Statute of Anne of 1710, “An Act for the Encouragement of Learning”. As described in Justice Breyer’s dissenting opinion in Golan v Holder: That statute sought in part to control, and to limit, preexisting monopolies that had emerged in the book trade as a result of the Crown’s having previously granted special privileges to royal favorites. … To prevent the continuation of the booksellers’ monopoly and to encourage authors to write new books, Parliament enacted the Statute of Anne. It bore the title: “An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.” And it granted authors (not publishers) and their assignees the “sole Right and Liberty of printing” their works for limited periods of time in order to encourage them “to compose and write useful Books”. 8 Anne, ch. 19, s_1 (emphasis added). But while the two copyright rivers are fed from the same original stream, their courses diverged, in what we suggest is an overridingly important way, as soon as the American colonies became the United States and adopted a written constitution that specifically addresses the power of the newly created Congress to enact copyright legislation.

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