Religious Use of Copyrighted Works after Smith, RFRA, and Eldred
27 Pages Posted: 4 May 2011
Date Written: May 3, 2011
In this Article, I evaluate the copyright doctrine of fair use and the use of injunctions to enforce copyrights in the context of religion in light of the Supreme Court decisions in Employment Division v. Smith and Eldred v. Ashcroft, and in light of the Religious Freedom Restoration Act (RFRA), the Congressional response to Smith. I conclude that religion is a special category such that the religious nature of the work and the religious nature of the use of a work should affect fair use analysis and, where fair use does not protect the use, injunctions should be used sparingly in favor of using the remedy of compulsory license.
These conclusions are supported by and are indeed in part a consequence of the social utilitarian foundation of copyright law in the United States and the related social justice principles of inclusion and empowerment, combined with the special place religion has in our constitutional scheme. My proposal provides a balanced, principled means for treating religion specially in the copyright context while maintaining both the copyright incentivizing function and the aim of making appropriate space for religious exercise and discourse.
Keywords: copyright, social justice, inclusion, empowerment, rfra, religion, free exercise, fair use, injunction, intellectual property, first amendment, constitution
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