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Whither Copyright? Transformative Use, Free Speech and an Intermediate Liability Proposal
Abstract
Copyrighted works are not just a form of property; they are also the primary means through which individuals exercise their expressive rights. While academics have grown increasingly concerned about the growing breadth of copyright law and the implications of this trend on the freedom of speech, courts have not fully addressed the inherent tension between intellectual property rights and expressive rights. Yet the central obstacle in reconciling this conflict is not the existence of a huge ideological rift between the academy and the judiciary; rather, it is structural. Simply put, the statutory scheme of the present copyright regime forces courts choose between two extreme options - fair use or infringement. If courts find infringement, hefty statutory damages typically result. On the other hand, if courts find fair use, an unauthorized user of a copyrighted work is able to exploit, without permission or payment, the work of another with impunity, thereby free-riding on the creative success of the original author. This Article advances an intermediate liability option that undermines the harsh, Draconian binary that precludes courts from effecting balancing First Amendment and intellectual property considerations. Under the intermediate liability scheme, transformative uses of copyrighted works would be deemed non-infringing. However, commercial exploitation of transformative works would be subject to an accounting of profits - profits that would, as a default rule, be evenly split between the author of the original work and the transformative user. As I argue, this intermediate liability option serves key First Amendment interests and advances the original, utilitarian vision of the federal copyright system - the maximization of dissemination of creative works to the public so as to advance progress in the arts. Meanwhile, it ensures that copyright owners will continue to receive reasonable payments for the commercial exploitation of their works.
... A 'transformative use' is generally defined as a use that adds to an original work, with a different purpose or different character, altering its meaning, expression, or message [16]. Parodies are an example of such use. ...
... In New Zealand, the legality of collecting private information depends largely on disclosure of the act. 16 Issues associated with how information collected from the DRM systems can be used fall outside the scope of this paper. ...
Recent developments in profitable digital content distribution such as those in the music industry have seen the increase in the use of digital rights management (DRM) solutions. These systems restrict the usage of digital content and have been recognised for their ability complement, augment or even contradict the law. The aim of this paper is to identify a set of copyright and privacy legal concerns relating to particular features of DRM solutions. DRM solutions can be evaluated on this basis for its ability to correspond to the relevant law, as well as its ability to protect the interests of copyright holders and consumers. Too little protection for the copyright holder will result in copyright holders seeking alternative solutions; too much erosion into the rights and expectations of consumers may attract law suits and poor uptake of products sold using the DRM technology.
An optimal copyright regime, based on fostering the development of new intellectual works, depends on well designed limitations. This article aims to analyze such rights' functionality with respect to musical works, in order to evaluate, in this field specifically, the flexibility of copyright protection and its adequacy for the creation of new works. To perform such task, the creative process of brazilian samba expert, noel rosa, is examined. A remarkable assumption of risks by derivative works' authors, the irregular formalization of legal relations between copyright owners and the profissionalization of certain authors are seen as direct answers to the legal incentives currently in force. The uncertainty derived from such answers exposes the tension between some of the analyzed norms' objectives and their actual effects.
This Article subverts the myth of American copyright militancy by providing a more nuanced view of our enforcement regime. As it turns out, the Emperor has been sold a suit of copyright that leaves a surprising number of authors naked - without sufficiently meaningful remedies for infringements of their creative output. Copyrighted works are effectively placed into a hierarchy of protection that, in many ways, safeguards creators less vigorously than regimes in other countries. Unlike any of its intellectual property allies, the United States demands timely registration of a copyright in order for rights holders to qualify for the recovery of statutory damages and attorneys' fees. Through the use of this ostensibly neutral formality, the current system privileges the interests of repeat, sophisticated rights holders, often at the expense of smaller creators. Moreover, existing law practically encourages certain kinds of infringement. In the end, sophisticated players enjoy powerful remedies when enforcing their copyrights. They dangle the legal Sword of Damocles - draconian statutory damages - over the heads of accused infringers, threatening to hand defendants their heads on a platter with more fervor than Salomé’s dance (to licensed music, of course). By sharp contrast, when they function as users of intellectual property (something all creators do), these same players often face only the most paltry of penalties for unauthorized exploitation - even when they infringe willfully. By drawing on a wide range of examples - from Hollywood screenplays to the formative blues riffs upon which rock music is built, paparazzi shots of Britney Spears to the iconic portrait of Che Guevara qua revolutionary, and congressional testimony from Scott Turow to publisher battles against university copy shops - this Article deconstructs the beneficiaries of the existing, registration-driven regime. Yet the point of analysis is not to call for even greater copyright protection for all creators. Rather, the Article highlights the need for holistic reform that equalizes protection among different classes of authors and rights holders while also balancing the interests of copyright users.
The 1976 Copyright Act inextricably mediates our relationship with cyberspace and new media. Yet three decades have passed since the Act went into effect, and without dispute, tremendous economic, technological, and social changes have occurred in that time. Although these changes do necessarily dictate wholesale revision of the law, we have certainly reached an appropriate point to evaluate the efficacy of the extant Act and think holistically about the issue of reform. By tracing the liability that a hypothetical law professor named "John" unwittingly incurs for his quotidian activities over the course of a single day, Infringement Nation highlights three key trends. First, copyright law is increasingly relevant to the daily life of the average American. Second, this growing pertinence has precipitated a heightened public consciousness over copyright issues. Finally, these two facts have magnified the vast disparity between copyright law and copyright norms. We are, in short, a nation of copyright infringers. In the twenty-first century, the average American violates copyright law with spectacular gusto on a daily basis without batting an eyelid. As surveillance technology grows more sophisticated, thereby allowing acts of infringement increasingly to come under the detection and enforcement power of copyright holders, we will be forced to confront the law/norm gap. In response, we have already begun to reexamine our norms. It is also incumbent upon us to reexamine the vitality of our copyright regime - a regime that presently threatens to make criminals of us all.
Our society increasingly perceives information as an owned commodity. Professor Benkler demonstrates that laws born of this conception are removing uses of information from the public domain and placing them in an enclosed domain where they are subject to an owner's Exclusive control. Professor Benkler argues that the enclosure movement poses a risk to the diversity of information sources in our information environment and abridges the freedom of speech. He then examines three laws at the center of this movement: the Digital Millennium Copyright Act, the proposed Article 2B of the Uniform Commercial Code, and the Collections of Information Antipiracy Act. Each member of this trio, Professor Benkler concludes, presents troubling challenges to First Amendment principles.
Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position - we refer to them as the IP Restrictors - represent a remarkable array of constitutional and intellectual property scholars. In this terms's Eldred v. Aschroft, leading IP Restrictor Lawrence Lessig, representing petitioner Eric Eldred, sought to convince the Supreme Court that the IP Restrictors' view of the Copyright Clause was the correct one. By a vote of 7-2, the Supreme Court rejected Eldred's claim and upheld the statute. But while the Court rejected the IP Restrictors' vision, it did not offer a satisfactory competing conception of the Copyright Clause and how the courts should construe it. Critically, even though the standard of review was of central significance, the Court applied a deferential form of rational basis scrutiny without explaining why this was the appropriate standard. This paper develops the case for deferential review of congressional legislation in the area of intellectual property and, at a deeper level, offers a new paradigm for understanding the Copyright Clause. We propose that from the vantage point of constitutional law, intellectual property should be treated as a form of constitutional property. Deference to congressional judgments is warranted because congressional legislation affecting intellectual property is analytically similar to congressional legislation affecting other forms of property. Courts subject congressional legislation affecting traditional forms of property to deferential review because of concerns about institutional competence and respect for majoritarian decisionmaking. These two concerns in conjunction with proper regard for holistic constitutional interpretation should also lead courts to deferential review of congressional legislation affecting intellectual property. In developing our position, we draw on constitutional history and, in particular, the lessons of Lochner v. New York. In defense of their vision of the Constitution, the IP Restrictors and the dissenters in Eldred make claims about the original understanding that, to an astonishing extent, echo those made by proponents of Lochner-era jurisprudence. We argue, however, that these claims fail for two reasons. First, the IP Restrictors and the dissenters disregard the limited scope of judicial review at the time of the Founding. Additionally, the IP Restrictors and dissenters disregard the range of views among the Founders about monopolies.
"Preliminary injunctions against libel, obscenity, and other kinds of speech are generally considered unconstitutional prior restraints. Even though libel may inflict truly irreparable harm on its victim, the most a libel plaintiff can hope for is damages, or perhaps a permanent injunction after final adjudication, not preliminary relief. Professors Lemley and Volokh argue the same rule should apply to preliminary injunctions in many copyright, trademark, right of publicity, and trade secret cases. They note that intellectual property rights, unlike other property rights, are a form of content-based, government-imposed speech restriction. The mere fact that the restriction is denominated a 'property right' should not exempt it from conventional First Amendment scrutiny, or justify government action that restricts speech which ultimately proves to be constitutionally protected. This is especially so because in most cases, damages would be a relatively effective remedy. The court's prior restraint doctrine and sound First Amendment policy suggest that preliminary injunctions in intellectual property cases are often (though not always) unconstitutional."
This paper provides a survey on studies that analyze the macroeconomic effects of intellectual property rights (IPR). The first part of this paper introduces different patent policy instruments and reviews their effects on R&D and economic growth. This part also discusses the distortionary effects and distributional consequences of IPR protection as well as empirical evidence on the effects of patent rights. Then, the second part considers the international aspects of IPR protection. In summary, this paper draws the following conclusions from the literature. Firstly, different patent policy instruments have different effects on R&D and growth. Secondly, there is empirical evidence supporting a positive relationship between IPR protection and innovation, but the evidence is stronger for developed countries than for developing countries. Thirdly, the optimal level of IPR protection should tradeoff the social benefits of enhanced innovation against the social costs of multiple distortions and income inequality. Finally, in an open economy, achieving the globally optimal level of protection requires an international coordination (rather than the harmonization) of IPR protection.