Beyond the Copyright Crisis: Principles for Change
Journal of the Copyright Society of the USA, vol. 55, pp. 165-199, 2008
36 Pages Posted: 1 Apr 2008 Last revised: 5 Jul 2016
Date Written: 2008
This essay asks: How did we get into the current crisis of copyright law, and how to move beyond it? This crisis developed as proliferating and expanding rights entered into tensions with each other and with exceptions and limitations. It has become acute as media progress has brought cultural creations online: we now increasingly face ever-harder copyright cases. This essay proposes principles to help courts resolve such cases: it bases its proposals on the rationales that it finds common to the laws of copyright and of authors' rights. At the start, to assure that such rights operate coherently, they are so defined, and remedies so articulated, that creators may not interfere with each other as they feed culture. Then, to meet real-world informational needs, rights are limited in time and made subject to exceptions from which end-users can benefit by relying on common sense alone. Further, for the sake of clarity and equity in copyright commerce, transfers are to be construed restrictively, and failures to license are to estop subsequent claims. Finally, overriding principles of privacy, of free expression, and of legality set parameters, effectively limitations, for enforcing rights. In conclusion, consequences are provisionally drawn for changing copyright doctrine and law. This essay is amplified in a work in progress posted online with links to visual examples.
Keywords: copyright, authors' rights, history, culture, crisis, internet, darknet, principles, doctrine, remedies
JEL Classification: K10, K11, K41, K42, L82, L86, L96, O34
Suggested Citation: Suggested Citation