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Privative Copyright

Posted by on Tuesday, January 21, 2020 in Articles, Volume 73, Volume 73, Number 1.

Shyamkrishna Balganesh | 73 Vand. L. Rev. 1 (2020) |

“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet modern thinking has attempted to undermine their place within copyright law and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that privative copyright claims form a legitimate part of the copyright landscape. It shows how privative copyright claims derive from considerations that are genuinely authorial and seek to redress a form of harm that is unique to the nature of the work involved— a harm best described as “disseminative.” Tracing the historic evolution of privative copyright claims in Anglo-American copyright law, it develops a theoretical basis for understanding the workings of these claims and offers a framework for courts to deploy in adjudicating them, which addresses the concerns about free speech and censorship that have contributed to the ignominy that privative copyright claims continue to encounter in modern copyright jurisprudence.

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Shyamkrishna Balganesh