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Ruth Bader Ginsburg's Copyright Legacy

Not long ago in this same space we analyzed the case of the booking.com trademark registration, which, as granted, established an important precedent regarding the registrability of trademarks related to their status as generic and therefore their registrability as trademarks. That ruling was made by Justice Ruth Bader Ginsburg of the United States Supreme Court.

Now, due to her passing, the world remembers and pays tribute to a great woman who, through a long career devoted to law, left a very important legacy on issues such as equity and equal rights, especially on gender issues.

Although she is well known for these important issues, Bader Ginsburg also had relevance in cases of the subject that concerns us in this space: Copyright.

Indeed, being a Justice of the Supreme Court of Justice, she had to be part of very interesting cases in a wide variety of law matters and her position on copyright issues was very interesting. Some people claim that liberal judges like her tend to have positions that tend to limit the rights of copyright holders. This could be stated if assumed that a stronger copyright system only protects the rights of copyright holders. If we consider that adequate copyright protection protects our common wellbeing and social development, this position is understood.

Bader Ginsburg despite being known as a liberal Justice, had during her life positions that strengthened copyright and it is considered that she was the greatest protector of these rights within this court.

One of the most significant copyright cases in which he took an active part as rapporteur for the decision was Eldred v. Ashcroft of 2003. In this case the validity of a copyright law that extended the validity of these rights for 20 more years was decided, compared to the previous norm that regulated the matter. Copyright holders feared that if this analysis occurred in the Supreme Court, a debate would open about the existence and very extension of these rights and how these could affect, according to some, freedom of expression. Rightly Justice Bader Ginsburg stated that these debates did not belong in the Court and if it were necessary to have them, this debate should take place in the legislative branch.

Among the relevant copyright cases in which Bader Ginsburg actively participated, Golan v. Holder, which dealt with works created abroad and the protection of works that were considered to be in the public domain. In her decision, the judge stated: "Neither the copyright and patent clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit," It is interesting to analyze this decision because in parallel with our own copyright protection system, the concept of a changing public domain is very interesting.

Defending copyright did not necessarily mean siding with large corporations. In New Yok Times Co v. Tasini, she ruled that publishers were infringing freelance writers' rights by including their writings in electronic databases, and in Petrella v. Metro-Goldwyn Meyer she ruled to  extend the term that plaintiffs have to file copyright infringement claims.

Throughout her career we can see how Judge Bader Ginsbursg was a strong advocate for copyright who used to side with the creator, be it a large organization or an individual. Bader Ginsburg understood that copyright is about protecting creations of the intellect, regardless of their origin.


Portrait of Karl Mutter, LL.M.
Karl Mutter, LL.M.