Copyright Harm and Reform
Iowa Law Review Bulletin, Vol. 96, 2010
10 Pages Posted: 18 Nov 2010
Date Written: November 17, 2010
In Real Copyright Reform Professor Jessica Litman argues that we can avoid confusion in the licensing of overlapping rights by adopting a rule that: “Any transfer of a part of a copyright should be understood to carry with it any rights necessary to allow its exercise and license; entities who own copyright fragments should have a duty to account to one another if they grant a license that invades a different owner’s turf, but it should not be the responsibility of the user seeking a license to track down and negotiate with all owners.”
This is an eminently sensible proposal. First, when a copyright holder grants a license to use a copyrighted work, the licensee understandably expects to be able to use the work in ways that are incidental to the licensed use. If the copyright holder does not wish to allow such incidental uses, the copyright holder can always include language to that effect; otherwise, a default rule that allows incidental uses will avoid pitfalls for the unwary user. Second, by requiring the holders of overlapping copyrights to account to one another, Litman’s proposal puts the burden of negotiating fragmented rights on those who are in a better position to meet it.
Professor Litman also proposes reforms directed at “commercial exploitation” of copyrights. Under her proposal personal uses would be exempt from regulation while commercial uses would become copyright law’s primary target, subject to traditional defenses such as fair use. One problem with this proposal is definitional: how do we draw the line between personal use and commercial exploitation? A second concern is that the focus on commercial exploitation will not always get us where we want to go. Copyright’s constitutional purpose is to “promote the Progress of Science and the useful Arts.” Thus, copyright law should protect against the kind of free-riding that is likely to undermine the incentives to produce and distribute creative works. Given copyright’s purpose, what we really need to ask is whether a particular use is likely to harm incentives to create or disseminate a copyrighted work and whether the use itself benefits creativity and innovation. Commercial exploitation is not always a good proxy for assessing these harms and benefits. Rather, the use of a copyrighted work should be considered non-infringing when that use: falls outside the range of uses a copyright holder would rely on for incentives to create the work, increases demand for the original work or its usual derivatives more than it decreases that demand, or is otherwise unlikely to reduce a copyright holder’s ex ante incentives to create or distribute the work.
Suggested Citation: Suggested Citation