Wednesday, July 02, 2008

Orit Fischman Afori

I just returned from a trip to Israel, where I had the pleasure of finally meeting in person the great Israeli IP scholar and law professor Orit Fischman Afori of the College of Management Academic Studies Law School. Professor Afori is a prolific and probing writer and thinker. I don't know how she finds the time to write so much. She has a very heavy teaching load, two young children, and a very demanding husband (just kidding! Her husband Tamir is a good friend too, and is equally charming. Those who came to the last Fordham International IP conference may have heard him speak about the new Israeli fair use provision, which he was intimately involved in sheparding through the Knesset as an attorney in the Ministry of Justice).

Most of her works are in Hebrew, and I am fortunate indeed to have some of them. But we are all fortunate that she has begun publishing in English. All Israeli copyright scholars I know are fluent in English, and at the most abstract, technical levels of proficiency. Their knowledge of international and U.S. law is vast and current. Others, such as Oren Bracha and Dotan Oliar are experts on very early English and U.S. copyright law. Their scholarship and research is impeccable.

To give readers a flavor of Professor Afori's work, I will focus on three recent publications, copies of which I have provided with links. The first article is called, "Reconceptualizing Property in Designs." It is published in volume 25 of the Cardozo Arts and Entertainment Law Journal, and is available here. The article notes the ill-fit of design protection in the US, and proposes a sui generis law. She discussed other troublesome questions such as the "derivative applied art market, such as copyrighted figures from movies later on merchandized by varied industrialized products."

The second article is called"Copyright Infringement without Copying - Reflections on the Thèberge Case," and is published in Volume 39 of the Ottawa Law Review, available here. The Thèberge case is an important Canadian Supreme Court opinion involving a defendant who purchased a lawful copy of a work, modified it, and then resold it. Her article is an explication of the boundaries between the reproduction and derivative rights.

The third article is "Human Rights and Copyright: The Introduction of Natural Law Considerations into American Copyright Law," published in Volume 14 of the Fordham Intellectul Property, Media & Entertainment Law Journal, and available here. The article explores the relationship between U.S. law and the moral and economic interests of authors as possible universal human rights, principally through an analysis of Article 27 of the 1948 Universal Declaration of Human Rights; that is, "the general right to participate in cultural life; and the material and moral rights of authors with respect to their works." As she notes: "Cultural rights, like human rights in general, are based mainly on natural law philosophy, enhancing the individual rights that every person deserves wherever they are." For better or worse, and I think for the much much better, the U.S. is not a natural law country. I side with Jeremy Bentham, who said, "there is no such thing as natural property; it is entirely as creature of the law. ... Property and law were born together, and would die together. Before the laws property did not exist; take away the laws, and property will be no more." In any event, although I may not see eye to eye with her on this one, the article, as with everything she does, the article is thoughtful and well worth reading.


Anonymous said...

While Prof. Afori's work may, in general, be excellent, "Reflections on the Thèberge Case" is problematic. It appears to lack a deeper understanding of the Canadian copyright system, and attempts to impose on it concepts that (while not foreign) are not representative of the copyright dialect present in Canada. Furthermore, the paper ignores the Supreme Court's express move away from natural-law theory of copyright--and attempts to plant a strong adaptation right based on non-existent ground.

I furthermore express disagreement in her analysis of the Court's decision and it's analysis of the moral/economic rights dilemma.

Nevertheless, I applaud Prof. Afori for creating, what amount to, a provocative piece. Spurring dialog within the legal community is always a praiseworthy achievement.

Anonymous said...

Thank you for flagging the work of Dr. Fischman Afori whose work I had not yet come across -- as you noted, it is indeed excellent (I'm just midway through 'Reconceptualizing Property in Designs.')

Emily said...

Does anyone know where Prof. Fischman Afori will be teaching this fall? Is she still in Israel or will she be visiting somewhere in the US?