Justifications for Copyright Limitations & Exceptions
Forthcoming chapter in Ruth Okediji (ed.), Copyright Law in an Age of Limitations and Exceptions
40 Pages Posted: 7 Aug 2014 Last revised: 12 Feb 2015
Date Written: February 10, 2015
Modern copyright laws grant authors a broad set of rights to control exploitations of their works. Typically tempering the reach of these broad rights are a series of limitations and exceptions (L&Es) adopted by legislatures or developed by courts through common law adjudication. L&Es uniformly result in free uses of protected works under U.S. copyright law, although in other countries, some L&Es may be subject to equitable remuneration obligations. L&E provisions in national copyright laws often seem a hodgepodge of special purpose provisions whose policy justifications are sometimes difficult to discern.
The essay traces the historical development of L&Es in U.S. copyright law. For the first hundred years of the nation’s existence, there were no L&Es in its copyright law, in part because rights were fewer in number and narrower in scope than they became over time. In the late 19th and early 20th centuries, courts invented the exhaustion of rights and fair use doctrines as limits on copyright’s scope. The exhaustion doctrine was first codified in the Copyright Act of 1909 and fair use in the Copyright Act of 1976 (“1976 Act”), although these doctrines have continued to evolve in the nearly four decades after their enactment. Less visible, although quite important to those whom they affect, are dozens of other L&Es codified in the 1976 Act.
The essay then considers nine justifications for the existence of these L&Es. One set promotes ongoing authorship. A second recognizes both authorial and broader public interests in dissemination of news, freedom of expression, and access to information. A third protects privacy, personal autonomy, and ownership interests of consumers. A fourth aims to fulfill certain cultural and social policy goals. A fifth enables public institutions, such as courts and legislatures, to function more effectively. A sixth fosters competition and ongoing innovation. A seventh exempts incidental uses lacking in economic significance. An eighth addresses market failure problems. A ninth encompasses L&Es adopted for politically expedient reasons.
It also discusses a tenth type of L&E, those designed to enable copyright law to be flexible and adaptable over time. The fair use doctrine accomplishes this goal in the U.S., although there are other ways to build flexibility into copyright laws. Especially in an era of rapid social, economic, and technological change, flexible exceptions such as fair use have some advantages over specific L&Es.
The essay concludes that the optimal policy for L&Es may well be to have specific exceptions for categories of justified uses that are relatively stable over time and for which predictability is more important than flexibility and to have an open-ended exception such as fair use to allow the law to adapt to new uses not contemplated by the legislature.
Keywords: copyright, copyright limitations and exceptions, US copyright law
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