COPYRIGHT LAW AS A SHIELD on research by
S H YA M BA LGA N E S H Professor of Law
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Shyam Balganesh confronts the critics of “censorial copyright claims,” claims where the creators of personal and often unpublished works — such as diaries, intimate photos and videos, personal letters, or even selfies — use copyright law to sue those who publish and distribute those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.
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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
