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The Idea of Progress in Copyright Law

66 Pages Posted: 22 Jan 2002 Last revised: 17 Apr 2017

Michael Birnhack

Tel Aviv University - Buchmann Faculty of Law


Copyright law is the main legal space that addresses one of the most distinct features of humankind: knowledge. Hence, copyright law encompasses a conception of the process in which knowledge is created. This article points to a possible such conception: the idea of progress. This idea is a neglected, yet a crucial, element in the development of copyright. Progress was a buzzword in the eighteenth century, at the time the Constitution was drafted and copyright law began settling in American law. The idea is the belief that humankind is on an inevitable course of betterment, and that knowledge is a product of an ongoing cumulative effort, which is secular in nature.

Accordingly, the article is an endeavor in the intellectual history of copyright law. It exposes the role of the idea of progress in American copyright law, and argues that the idea had a central place in its development, and still has an important role in our contemporary understanding thereof. I further claim that the idea has the capacity to be both descriptive and prescriptive: it can explain much of copyright law's doctrines, such as the idea/expression dichotomy or the fair use defense, and it captures the regulatory conception of copyright law, rather than its proprietary conception.

Suggested Citation

Birnhack, Michael, The Idea of Progress in Copyright Law. 1 Buffalo Intellectual Property Law Journal, 3-58 (2001). Available at SSRN: or

Michael D. Birnhack (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
+972-3-640-6623 (Phone)

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