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Copyright Clause, First Amendment, public domain, creative expression, Treaty Power, multilateral treaties


Remarking on the Beijing Treaty on Audiovisual Performances at the Vanderbilt Journal of Entertainment & Technology Law’s Symposium, From Berne to Beijing, Professor Lange expressed general misgivings about exercising the Treaty Power in ways that alter the nature of US copyright law and impinge on other constitutional rights. This edited version of those Remarks explains Professor Lange’s preference for legislation grounded squarely in the traditional jurisprudence of the Copyright Clause, the First Amendment, and the public domain, and his preference for contracting around established expectations rather than reworking default rules through treaties. It continues by exploring the particular costs associated with the Beijing Treaty’s expansion of moral rights into US copyright law. Those expanded rights, viewed in light of previous legislative and judicial expansions of traditional US copyright principles, threaten to erode certain portions of the public domain and the exercise of First Amendment rights. Recognizing that additional rights for some result in a loss of rights for others, these Remarks invite critical reflection on the costs and benefits of the Beijing Treaty, “copyright restoration,” and other well-intentioned alterations to the status quo.

Library of Congress Subject Headings

Constitutional law, Public domain, Constitution. 1st Amendment, Treaty-making power, Copyright