The Evolving Role of ‘For Profit’ Use in Copyright Law: Lessons from the 1909 Act
31 Pages Posted: 18 May 2010 Last revised: 4 Jun 2010
Date Written: February 1, 2010
The transformation of copyright law from a law that regulated only commercial actors to one that regulates everyone was the result not only of technological developments, but also a fundamental change in the definition of the rights granted to copyright owners. The 1909 Act stands in the middle of this change, with some rights granted to the copyright owner defined by the “for profit” nature of the use and other rights granted without this restriction. This article examines the reasons for the “for profit” restrictions on rights contained in the 1909 Act and lessons we can learn from defining the rights of a copyright owner with a “for profit” restriction.
Part I of this article explores the 1909 Act and its legislative history, demonstrating that the “for profit” limitation on public performance rights for certain types of works was meant to preserve a space for the free enjoyment of music by the public. Permitting a certain amount of “free riding” is critical if copyright law is to serve its constitutional mandate to promote progress in knowledge and learning. Congress used the defendant’s “for profit” use as a proxy for those uses most likely to cause commercial harm to a plaintiff. In the end, Congress was trying to shape the rights of a copyright owner to ensure that actionable infringement resulted only from uses that interfered with a copyright owner’s commercial exploitation of the work and thereby affected the incentive to create new works. Part II examines how the judicial interpretation of the “for profit” limitation focused attention on the potential “free riding” nature of the use, whether or not the use caused commercial harm to the copyright owner. In Part III the article suggests that the experience with the “for profit” limitation under the 1909 Act counsels that to be more consistent with the incentive purpose of copyright, the law should require copyright owners to demonstrate commercial harm in order to prove infringement for certain types of uses.
Keywords: copyright, intellectual property, commercial use, for profit use
JEL Classification: K12
Suggested Citation: Suggested Citation