The Place of the User in Copyright Law

Abstract:     
The past decade has witnessed an upsurge of interest, on the part of both copyright owners and copyright scholars, in users of copyrighted works. Copyright doctrine, however, is characterized by the absence of the user. This absence produces a domino effect that ripples through the structure of copyright law, shaping both its unquestioned rules and its thorniest dilemmas. The essay traces the effects of the user's absence, and argues that a theory of the user is needed to restore doctrinal and theoretical balance. Specifically, it is commonly understood that users play two important roles within the copyright system: users receive copyrighted works, and some users become authors. Both roles further the copyright system's larger project to promote the progress of knowledge. But copyright law and policy have shown little interest in understanding the processes by which these roles are performed, nor in inquiring what users need to perform their roles in a way that optimizes the performance of the copyright system as a whole. The models of the user offered by copyright scholars have not helped as much as they could in answering these questions. In broad brush, scholarly efforts to cast the user have produced three fully fledged candidates, each more unrealistic than the last: the economic user, the postmodern user, and the romantic user. As the essay shows, none of these characters provides a satisfying account of the user's role within the copyright system. This essay introduces a new character, the situated user, who engages cultural goods found within the context of her culture through a variety of activities ranging from consumption to creative play, and whose activities are the vehicle through which copyright's collective project is advanced.

Keywords: copyright, private copying, secondary liability, fair use, public domain, user

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