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In Stanford Law Review, Prof. Victor Reconceptualizes Compulsory Copyright Licenses

Jacob Victor

By John Caher

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Jacob Victor

A fascination with intellectual property in law school, coupled with a clerkship for a federal judge who authored a seminal article on the fair use standard, led Jacob Victor on a professional journey that brought him to Albany in the middle of an international pandemic.

Professor Victor joined the Albany Law School faculty in July to teach intellectual property and property law, develop a program for students interested in innovation and technology-focused careers, and serve as faculty advisor to the Innovation Intensive apprenticeship clinic.

“IP is fascinating because it's an area that's constantly in flux as new technologies, court cases, and legislation change the law, as well as require us to reassess how best to realize the policy goals at the heart of the IP system,” Victor said.

Victor clerked for Judge Pierre Leval, now a senior judge of the Second Circuit U.S. Court of Appeals, who wrote an article for the Harvard Law Review in 1990 on fair use. Victor considers it “one of the most important pieces of legal scholarship ever written.”

“It's rare to see an article directly influence the Supreme Court, but that's exactly what happened in Campbell v. Acuff Rose, in which the Court adopted Judge Leval's conception of fair use,” he said.

Victor is making his own contribution to IP/copyright scholarship. His article, “Reconceptualizing Compulsory Copyright Licenses,” recently published in the Stanford Law Review, examines inherent tension between creator incentives and public access to cultural works.

Read on SSRN: Reconceptualizing Compulsory Copyright Licenses

Among other things, he contends that the Music Modernization Act (MMA) signed by President Trump may hurt consumers by changing the criteria used to set royalty rates for streaming services. Victor said the merits of compulsory licensing are largely being ignored in new legislation.

“Compulsory licensing has been, and should continue to be, one of the most important tools that copyright law uses to balance between the twin goals of providing financial incentives to creators and providing the public with access to cultural works,” he said.

Victor’s article traces the lengthy evolution of copyright law’s approach to compulsory licensing vis-à-vis the music industry, and chronicles the technological and cultural changes that the law has at times struggled to keep pace with, partially because music implicates two distinct copyright interests: the musical composition and the recorded version of the song.

“The result is a highly complex web of regulation that subjects different forms of dissemination, even forms of dissemination that seem nearly identical, to different forms of licensing—either compulsory or free market licensing,” Victor writes.

Compulsory licensing dates to the 1909 Copyright Act, which aimed to regulate the conversion of sheet music into mechanically playable forms such as player piano rolls and the phonograph. It allowed anyone to license musical works, for a government-set rate, without the express permission of the owner.

Victor defends compulsory licensing because it enables distributors such as Pandora to make music accessible without engaging in endless negotiations with myriad copyright owners. He argues that the Copyright Act’s compulsory licensing schemes are motivated by an impulse similar to fair use and explained brilliantly by his former mentor, Judge Leval: ensuring public access to creative works without undermining the incentive to create.

“Judge Leval's theory of fair use strongly influences my scholarship,” Victor said. “In particular, his emphasis on reorienting the doctrine to more closely reflect the policy goals at the heart of the copyright system has inspired a lot of my research into how other areas of the copyright system, such as compulsory licensing, can better reflect those goals.”

Although IP law is generally federal, Victor said there are state law considerations as well.

“Most of the well-known areas of IP—copyright, trademark, patent—are federal,” Victor acknowledges. “But state government still plays an important role in other areas, such as trade secret law and the right of publicity. New York State has been working on right of publicity reform for the last few years and I think that will be a live issue for a while.” 

Victor’s scholarship has been published in the Yale Law Journal and the Cornell International Law Journal, and in addition to the Stanford article he has a forthcoming piece on “Utility-Expanding Fair Use” in the Minnesota Law Review.

“I hope my scholarship encourages courts, legislators and academics to view compulsory licensing as a tool that’s still relevant to creating good copyright policy, as well as lead to more thoughtful changes to  current law,” said Victor, who previously taught at New York University School of Law and litigated copyright, trademark and trade secret cases as an associate at Kirkland & Ellis.