Flexible Remedies as a Means to Counteract Failures in Copyright Law

Abstract

Copyright law was designed to achieve the societal goal of promoting progress, by encouraging the creation of works and by safeguarding their accessibility. However, some fundamental failures, including the chilling effect (a result of the current system), prevent optimal use of copyrighted works. Several causes combine to create the chilling effect, some of which have not been discussed in scholarly writing. This article focus on two basic characteristics of copyright law which, when combined, enhance the chilling effect. The first is the all-or-nothing approach adopted by courts in copyright cases, under which copyright litigation generally leads to one of two outcomes: either the plaintiff wins and is entitled to all available remedies, including injunctive and monetary relief, or they lose and receive nothing. The second characteristic is the many uncertainties of copyright law. The first part of the article explains the effect that the combination of these two characteristics creates, an incentive to settle, rather than litigate, copyright disputes, and its consequences.

In the second part, the article discusses a way to resolve this problem: introducing a flexible approach to remedies, determined on a case by case basis, which would permit courts to balance the conflicting interests inherent in copyright law. If courts were able to grant remedies that reflect a compromise position, then parties might prefer to litigate and leave the final decision to court; or at least it might reduce the settlement amount to be paid. In order to achieve this result, copyright remedies should not be viewed as due automatically once it has been determined that an infringement has taken place, but rather as a complimentary means for implementing policy. The article ends with an illustration of ways by which injunctive and monetary remedies could be employed by courts so as to reflect the conflicting interests and produce flexible outcomes, which may reduce the chilling effect of the current system on the use of copyrighted works.

Keywords: Intellectual Property, Copyright, Remedies, Injunctions, Damages, Chilling Effect