68 Pages Posted: 16 Mar 2016 Last revised: 10 Jan 2017
Date Written: March 16, 2016
It is a deeply entrenched principle that copyright infringement does not require fault. The Article reexamines this principle in the context of “copyright accidents.” Copyright accidents occur when ex ante it is not certain whether a proposed use will result in copyright infringement. In cases where the copyright status of a work is unclear, where the preferences of the copyright owner are reasonably in doubt, or where the copyist is unaware she is copying, there is merely a risk that a proposed use will infringe the right. And troublingly, the measures that any party could take to reduce that risk – for example searching for the copyright information – impose costs. Such copyright accidents are ubiquitous, but they are invisible to copyright law. The law has no doctrinal or conceptual mechanism for dealing with them. In such circumstances the question becomes, should liability require fault?
To answer this question we apply the well-developed theoretical framework of tort law to copyright accidents. Typically, tort law deals with the problem of accidental harm through the application of negligence rules. Such rules incentivize both potential injurers and victims to invest optimally in prevention. This Article argues that copyright accidents should likewise be governed by a negligence rule. Employing a negligence rule in copyright is justified by both efficiency and other consequence-oriented normative theories of copyright. Doing so would incentivize both the copyright owner and user to take optimal measures to avoid copyright accidents. We demonstrate how simple changes to the fair use doctrine could implement a negligence rule in copyright and thus solve the copyright accident problem. This in turn would positively affect numerous real world controversies, such as the problems of mass digitization, orphan works, and copyright triangles.
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