Pub Date : 2006-09-08DOI: 10.1017/S0008197306007252
J. Ginsburg
Much contemporary copyright rhetoric casts copyright as a derogation from a primordial public domain. Placing the public domain in the initial position buttresses attempts to contain a perceived over-expansion of copyright. I do not take issue with the normative role these endeavors assign to the public domain. The public domain is today and should remain copyright's constraining counterpart. But normative arguments that also claim the support of history may be fundamentally anachronistic. The ensuing examination of the respective domains of author and public at copyright's inception, in 18th-19th century Britain, France and America, reveals more ambiguity than today's critiques generally acknowledge. In England, John Locke supplied the philosophical basis for a common law of authorial property rights before the passage of the first copyright statute, the Statute of Anne of 1710. The post-statutory caselaw belies the proposition that the statute provided the sole source of authors' enforceable legal rights. Had the Statute of Anne created property rights ex nihilo, then the following propositions should be true: 1. Subject matter not included within the statute was not protected 2. Protection for covered subject matter depended on compliance with statutory formalities 3. Rights not included within the statute were not protected 4. The duration of rights was limited to the statutory term In fact, only the last of these ultimately proved to be correct, and the decision that determined the issue, Donaldson v. Beckett, was hotly debated, even deplored, at the time by significant expositors of the common law. More importantly, resolution of the duration issue did not fully contain the author's domain. English judges continued both to grant extra-statutory protections, and to interpret hospitably claims that pushed the limits of statutory scope. In revolutionary France, the rhetoric of "propriete publique" held greater sway than in Britain. Advocates stressed both the public utility of works of authorship and the public's claims to unfettered use following a statutory period to which the author, as the work's creator, was justly entitled. But the author's claims were set against the backdrop of a broader public entitlement. Paradoxically, however, while the French sources articulated a concept of the public domain in many ways consistent with today's characterizations, the substantive law was in fact far more protective of authorial property rights than either British or American law at the time. Finally, early American copyright history reveals even greater ambiguities. If the word "securing" in the constitutional copyright clause indicates that the Framers perceived that authors enjoyed preexisting common law property rights in their works, the heavy formalities imposed by subsequent statutes suggest a more positivistic view. In Wheaton v. Peters, the Supreme Court rejected common law copyright in published works, but for reasons extraneous to compet
许多当代版权修辞将版权视为对原始公共领域的贬损。将公共领域置于首要位置，有助于遏制人们认为的版权过度扩张。我对这些努力赋予公共领域的规范性角色没有异议。公共领域在今天是，并且应该继续是版权的限制性对应物。但是，同样声称有历史支持的规范性论点可能从根本上是不合时宜的。随后，在18 -19世纪的英国、法国和美国，对版权开始时作者和公众各自领域的考察，揭示了比今天的批评普遍承认的更多的模糊性。在英国，约翰·洛克(John Locke)在第一部版权法——1710年的《安妮法令》(statute of Anne)通过之前，为作者财产权的普通法提供了哲学基础。成文法后的判例法掩盖了成文法为作者提供可执行法律权利的唯一来源的主张。如果《安妮法令》无为地创造了财产权，那么下列命题应该是正确的:未包括在法令范围内的标的物不受保护。承保标的物的保护取决于是否遵守法定手续。未列入法令的权利不受保护。权利的持续时间被限制在法定期限内，事实上，只有最后一条最终被证明是正确的，而决定这个问题的判决，唐纳森诉贝克特案，在当时受到了普通法重要阐释者的激烈辩论，甚至是谴责。更重要的是，持续时间问题的解决并没有完全包含作者的领域。英国法官继续给予法律之外的保护，并友好地解释超越法律范围的诉讼请求。在大革命时期的法国，“适当公众”的修辞比英国更有影响力。倡导者强调作者身份作品的公共效用和公众在法定期限后不受限制地使用作品的权利，而作者作为作品的创造者，理应享有这一权利。但作者的主张是在更广泛的公众权利的背景下提出的。然而，矛盾的是，虽然法国文献在许多方面阐明了公共领域的概念，与今天的特征一致，但实体法实际上比当时的英美法律更能保护作者的财产权。最后，美国早期的版权历史揭示了更大的模糊性。如果宪法版权条款中的“保护”一词表明，制宪者认为作者在其作品中享有预先存在的普通法财产权，那么随后的法规所规定的繁文缛节则表明了一种更为实证的观点。在惠顿诉彼得斯案(Wheaton v. Peters)中，最高法院驳回了对已出版作品的普通法版权保护，但理由与作者和公众领域这一相互竞争的概念无关。惠顿依靠“确保”来支持州普通法对其出版的报告的版权保护，这与吉本斯诉奥格登案中汽船垄断者不成功的论点相呼应，后者声称，“确保”意味着各州保护著作和发明的剩余权力，因此纽约有权授予汽船发明者在哈德逊河上的独家航行权。由于“确保”一词带有马歇尔法院在吉本斯案中推翻的州际贸易壁垒的污点，惠顿后来试图说服该法院恢复剩余的国家垄断权力的努力注定要失败。尽管惠顿驳回了普通法对已出版作品的版权保护，但作者的权利范围并未严格限制在联邦法规的狭窄范围内。公共领域始于出版物。未出版的作品仍然是国家普通法权利的对象，随着时间的推移，法院在作品中制定了一个平行的普通法权利领域，这些作品虽然在技术上是"未出版"的，因为它们没有以副本分发给公众，但仍然遇到了重大的，有时甚至是大规模的公众曝光。因此，即使在像美国版权这样实证主义的制度中，法官也会找到机会承认作者的法外文学财产权。
{"title":"'Une Chose Publique'? The Author's Domain and the Public Domain in Early British, French and Us Copyright Law","authors":"J. Ginsburg","doi":"10.1017/S0008197306007252","DOIUrl":"https://doi.org/10.1017/S0008197306007252","url":null,"abstract":"Much contemporary copyright rhetoric casts copyright as a derogation from a primordial public domain. Placing the public domain in the initial position buttresses attempts to contain a perceived over-expansion of copyright. I do not take issue with the normative role these endeavors assign to the public domain. The public domain is today and should remain copyright's constraining counterpart. But normative arguments that also claim the support of history may be fundamentally anachronistic. The ensuing examination of the respective domains of author and public at copyright's inception, in 18th-19th century Britain, France and America, reveals more ambiguity than today's critiques generally acknowledge. In England, John Locke supplied the philosophical basis for a common law of authorial property rights before the passage of the first copyright statute, the Statute of Anne of 1710. The post-statutory caselaw belies the proposition that the statute provided the sole source of authors' enforceable legal rights. Had the Statute of Anne created property rights ex nihilo, then the following propositions should be true: 1. Subject matter not included within the statute was not protected 2. Protection for covered subject matter depended on compliance with statutory formalities 3. Rights not included within the statute were not protected 4. The duration of rights was limited to the statutory term In fact, only the last of these ultimately proved to be correct, and the decision that determined the issue, Donaldson v. Beckett, was hotly debated, even deplored, at the time by significant expositors of the common law. More importantly, resolution of the duration issue did not fully contain the author's domain. English judges continued both to grant extra-statutory protections, and to interpret hospitably claims that pushed the limits of statutory scope. In revolutionary France, the rhetoric of \"propriete publique\" held greater sway than in Britain. Advocates stressed both the public utility of works of authorship and the public's claims to unfettered use following a statutory period to which the author, as the work's creator, was justly entitled. But the author's claims were set against the backdrop of a broader public entitlement. Paradoxically, however, while the French sources articulated a concept of the public domain in many ways consistent with today's characterizations, the substantive law was in fact far more protective of authorial property rights than either British or American law at the time. Finally, early American copyright history reveals even greater ambiguities. If the word \"securing\" in the constitutional copyright clause indicates that the Framers perceived that authors enjoyed preexisting common law property rights in their works, the heavy formalities imposed by subsequent statutes suggest a more positivistic view. In Wheaton v. Peters, the Supreme Court rejected common law copyright in published works, but for reasons extraneous to compet","PeriodicalId":10506,"journal":{"name":"Columbia Law School","volume":"19 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81874481","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Empirical research indicates that factors such as an individual Justice's general political ideology play a substantial role in the decision of Supreme Court cases. Although this pattern holds in federalism cases, views about the proper allocation of authority between the state and federal governments - independent of whether the particular outcome in any given case is "liberal" or "conservative" - can sometimes be decisive, as demonstrated by the 2005 decision in Gonzales v. Raich, in which "conservative" Justices voted to invalidate a strict federal drug provision in light of California's legalization of medical marijuana, and "liberal" Justices voted to uphold the federal law. Proponents of a strongly legal realist view of the Court might argue that views about federalism are themselves ideological, or that Justices who commit themselves to defending or opposing states' rights do so because of a calculation about the likely long-term consequences of such a position. But they do so only by draining the realist enterprise of its descriptive and normative power, because, as this Essay argues, genuine principles about federalism are distinctly legal, even if formed on the basis of long-term calculations about the likely effects of various views about federalism. Taking federalism as a point of departure, this Essay describes and justifies a method by which Justices choose the legal principles that bind them.
{"title":"Whose Ox is Being Gored? When Attitudinalism Meets Federalism","authors":"Michael C. Dorf","doi":"10.2139/SSRN.887744","DOIUrl":"https://doi.org/10.2139/SSRN.887744","url":null,"abstract":"Empirical research indicates that factors such as an individual Justice's general political ideology play a substantial role in the decision of Supreme Court cases. Although this pattern holds in federalism cases, views about the proper allocation of authority between the state and federal governments - independent of whether the particular outcome in any given case is \"liberal\" or \"conservative\" - can sometimes be decisive, as demonstrated by the 2005 decision in Gonzales v. Raich, in which \"conservative\" Justices voted to invalidate a strict federal drug provision in light of California's legalization of medical marijuana, and \"liberal\" Justices voted to uphold the federal law. Proponents of a strongly legal realist view of the Court might argue that views about federalism are themselves ideological, or that Justices who commit themselves to defending or opposing states' rights do so because of a calculation about the likely long-term consequences of such a position. But they do so only by draining the realist enterprise of its descriptive and normative power, because, as this Essay argues, genuine principles about federalism are distinctly legal, even if formed on the basis of long-term calculations about the likely effects of various views about federalism. Taking federalism as a point of departure, this Essay describes and justifies a method by which Justices choose the legal principles that bind them.","PeriodicalId":10506,"journal":{"name":"Columbia Law School","volume":"185 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74405135","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article was written for a symposium on the occasion of the 25th anniversary of Martin Lipton's 1979 article, Takeover Bids in the Target's Boardroom. In our view, Takeover Bids is a Burkean take on a messy Schumpeterian world that, during 1980s, reached its apex in Drexel Burnham's democratization of finance through the junk bond market. But the irony is that today, long after the Delaware Supreme Court has adopted many of Lipton's views, there is a new market for corporate control that no longer poses the threats - or supports the opportunities - that the market of the 1980s created. Today's strategic bidders and their targets share the same boardroom views. And for precisely this reason, "just say no" is no longer the battle cry that it once was. It stirred the crowds in the past precisely because hostile takeovers could be credibly depicted as a sweeping threat to the status quo - a claim that no one would make about today's strategic bidders. The market for corporate control now is a process of peer review, rather than an instrument of systemic change. What is lost as a result is just what, in the conservative view, has been gained: the capacity of the market for corporate control to ignite the dynamism that in our view has served the U.S. economy so well. Although Lipton may still lose today's battle to allow targets to just say no to intra-establishment takeovers, he will still have won the larger war. For now, at least, boardrooms are insulated from much of the force of a truly Schumpeterian market in corporate control of the sort we briefly glimpsed during the 1980s.
{"title":"Takeovers in the Boardroom: Burke Versus Schumpeter","authors":"R. Gilson, Reinier H. Kraakman","doi":"10.2139/SSRN.732783","DOIUrl":"https://doi.org/10.2139/SSRN.732783","url":null,"abstract":"This article was written for a symposium on the occasion of the 25th anniversary of Martin Lipton's 1979 article, Takeover Bids in the Target's Boardroom. In our view, Takeover Bids is a Burkean take on a messy Schumpeterian world that, during 1980s, reached its apex in Drexel Burnham's democratization of finance through the junk bond market. But the irony is that today, long after the Delaware Supreme Court has adopted many of Lipton's views, there is a new market for corporate control that no longer poses the threats - or supports the opportunities - that the market of the 1980s created. Today's strategic bidders and their targets share the same boardroom views. And for precisely this reason, \"just say no\" is no longer the battle cry that it once was. It stirred the crowds in the past precisely because hostile takeovers could be credibly depicted as a sweeping threat to the status quo - a claim that no one would make about today's strategic bidders. The market for corporate control now is a process of peer review, rather than an instrument of systemic change. What is lost as a result is just what, in the conservative view, has been gained: the capacity of the market for corporate control to ignite the dynamism that in our view has served the U.S. economy so well. Although Lipton may still lose today's battle to allow targets to just say no to intra-establishment takeovers, he will still have won the larger war. For now, at least, boardrooms are insulated from much of the force of a truly Schumpeterian market in corporate control of the sort we briefly glimpsed during the 1980s.","PeriodicalId":10506,"journal":{"name":"Columbia Law School","volume":"25 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74423428","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article offers new perspectives on the market for corporate control, the convergence debate, and Japanese corporate governance. We begin by applying in the corporate governance setting two related insights from other fields: from economics, the theory that there is no universally efficient organizational model; from organizational behavior, evidence that diverse groups outperform homogeneous ones. We then consider the potential for convergence toward a particular governance technology - the market for corporate control - to increase the desirable trait of diversity within economic systems. Takeovers, we argue, are not exclusively a disciplinary device, but also an engine of managerial and legal innovation. We apply these insights to Japan through a detailed examination of previously unexplored data on Japanese M&A. We first link the historically low level of Japanese M&A activity to a thick institutional environment much more complex than the conventional focus on cross-shareholding suggests. Among the more startling findings is the existence of negative control premiums in Japanese tender offers and the role of legal shareholder protections in dampening the market for corporate control. Next, we show how the dearth of takeovers is inextricably linked to the lack of diversity in Japanese corporate practices. We then explore how recent changes in "institutions for deals" in Japan correlate with increased takeover activity, which in turn is linked to the creation of a broader range of governance practices, managerial innovations, and structural shifts in corporate lawmaking processes. The Article concludes by analyzing the implications of our findings for two academic debates: the role of functional substitutes in comparative corporate governance theory, and the impact of legal investor protections on corporate governance patterns.
{"title":"Institutional Change and M&A in Japan: Diversity Through Deals","authors":"C. Milhaupt, Mark D. West","doi":"10.2139/ssrn.290744","DOIUrl":"https://doi.org/10.2139/ssrn.290744","url":null,"abstract":"This Article offers new perspectives on the market for corporate control, the convergence debate, and Japanese corporate governance. We begin by applying in the corporate governance setting two related insights from other fields: from economics, the theory that there is no universally efficient organizational model; from organizational behavior, evidence that diverse groups outperform homogeneous ones. We then consider the potential for convergence toward a particular governance technology - the market for corporate control - to increase the desirable trait of diversity within economic systems. Takeovers, we argue, are not exclusively a disciplinary device, but also an engine of managerial and legal innovation. We apply these insights to Japan through a detailed examination of previously unexplored data on Japanese M&A. We first link the historically low level of Japanese M&A activity to a thick institutional environment much more complex than the conventional focus on cross-shareholding suggests. Among the more startling findings is the existence of negative control premiums in Japanese tender offers and the role of legal shareholder protections in dampening the market for corporate control. Next, we show how the dearth of takeovers is inextricably linked to the lack of diversity in Japanese corporate practices. We then explore how recent changes in \"institutions for deals\" in Japan correlate with increased takeover activity, which in turn is linked to the creation of a broader range of governance practices, managerial innovations, and structural shifts in corporate lawmaking processes. The Article concludes by analyzing the implications of our findings for two academic debates: the role of functional substitutes in comparative corporate governance theory, and the impact of legal investor protections on corporate governance patterns.","PeriodicalId":10506,"journal":{"name":"Columbia Law School","volume":"9 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2001-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90427238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The large public firm dominates business in the United States despite its critical infirmities, namely the frequently fragile relations between stockholders and managers. Managers' agendas can differ from shareholders'; tying managers tightly to shareholders has been central to American corporate governance. But in other economically-advanced nations ownership is not diffuse but concentrated. It is concentrated in no small measure because the delicate threads that tie managers to shareholders in the public firm fray easily in common political environments, such as those in the continental European social democracies. Social democracies press managers to stabilize employment, press them to forego even some profit-maximizing risks with the firm, and press them to use up capital in place rather than to down-size when markets no longer are aligned with firm's production capabilities. Since managers must have discretion in the public firm, how they use that discretion is crucial to stockholders, and social democratic pressures on managers induce them to stray from their shareholders' preference to maximize profits. Moreover, the means that align managers with diffuse stockholders in the United States--incentive compensation, transparent accounting, hostile takeovers, and strong shareholder-wealth maximization norms--are harder to implement in continental social democracies. Hence, public firms in social democracies will, all else equal, have higher managerial agency costs, and large-block shareholding will persist as shareholders' next best remaining way to control those costs. Indeed, when we line up the world's richest nations on a left-right continuum and then line them up on a close to diffuse ownership continuum, the two correlate powerfully. True, the effects on total social welfare are ambiguous; social democracies may enhance total social welfare, but if they do, they do so with fewer public firms than less socially-responsive nations. We thus uncover not only a political explanation for ownership concentration in Europe, but also a crucial political prerequisite to the rise of the public firm in the United States, namely the absence of a strong social democracy and the concomitant political pressures it would have put on the American business firm.
{"title":"Political Preconditions to Separating Ownership from Corporate Control","authors":"M. Roe","doi":"10.2139/ssrn.165143","DOIUrl":"https://doi.org/10.2139/ssrn.165143","url":null,"abstract":"The large public firm dominates business in the United States despite its critical infirmities, namely the frequently fragile relations between stockholders and managers. Managers' agendas can differ from shareholders'; tying managers tightly to shareholders has been central to American corporate governance. But in other economically-advanced nations ownership is not diffuse but concentrated. It is concentrated in no small measure because the delicate threads that tie managers to shareholders in the public firm fray easily in common political environments, such as those in the continental European social democracies. Social democracies press managers to stabilize employment, press them to forego even some profit-maximizing risks with the firm, and press them to use up capital in place rather than to down-size when markets no longer are aligned with firm's production capabilities. Since managers must have discretion in the public firm, how they use that discretion is crucial to stockholders, and social democratic pressures on managers induce them to stray from their shareholders' preference to maximize profits. Moreover, the means that align managers with diffuse stockholders in the United States--incentive compensation, transparent accounting, hostile takeovers, and strong shareholder-wealth maximization norms--are harder to implement in continental social democracies. Hence, public firms in social democracies will, all else equal, have higher managerial agency costs, and large-block shareholding will persist as shareholders' next best remaining way to control those costs. Indeed, when we line up the world's richest nations on a left-right continuum and then line them up on a close to diffuse ownership continuum, the two correlate powerfully. True, the effects on total social welfare are ambiguous; social democracies may enhance total social welfare, but if they do, they do so with fewer public firms than less socially-responsive nations. We thus uncover not only a political explanation for ownership concentration in Europe, but also a crucial political prerequisite to the rise of the public firm in the United States, namely the absence of a strong social democracy and the concomitant political pressures it would have put on the American business firm.","PeriodicalId":10506,"journal":{"name":"Columbia Law School","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2000-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82212365","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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