Copyright as Trade Regulation


I. Locating the Public Interest in Copyright



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I. Locating the Public Interest in Copyright

Among copyright scholars, a debate of sorts is raging as to whether copyrights are “property.”40 While this is an interesting question, it might not be a very useful one. Contrary to what Blackstone famously wrote, to describe something as “property” is not to say that one has unlimited rights in it. Even property rights are subject to limits, which the government imposes in furtherance of the public welfare. As a consequence, it might not matter very much whether copyrights are “property” or are, instead, limited grants of exclusivity, made for limited times, and effected through enactments of positive law “according to the will and convenience of the society.”41 If the ownership of property is characterized by the right to exclude others, then copyrights do indeed create property rights. But copyright law also regulates; in granting rights, it describes the range of acceptable behaviors in those having an interest in copyrighted works—i.e., creators, publishers, users, consumers, and the public. When Professor Patterson wrote that copyright has “both a proprietary and a regulatory basis,”42 he was right, although not necessarily in the way he intended. Property and regulation are two sides of the same coin: To the extent the law creates property rights in creators and their assigns, it regulates the behavior of the rest of us.

The most useful observation about copyrights as property might be that characterizing copyrights as “property” risks conveying the impression that copyrights are more exclusive than they really are. The word “property” connotes a broad right—that is, a right with few, if any, exceptions. It also connotes a durable right. At a fundamental level, the question whether copyrights are property revolves around the extent to which the government can and should tinker with the exclusive rights that copyright owners have come to enjoy. Most would agree that the government has the power to do this. For the most part, however, scholars have elided the question of what interests the government should consider when it decides whether and how to exercise this power. Obviously, the government should seek to “promote the Progress of Science,”43 but this injunction is so vague as to be almost completely unhelpful. What, exactly, are the interests underlying copyright law?

The law itself is ambivalent on the subject. Consider the fair use defense: The fact that a use can be prima facie infringing and nonetheless be fair suggests that the government does have the power to shrink the property right. Courts exercise this power to safeguard the public interest in cases in which upholding the exclusive rights of the copyright owner would undermine the purposes of copyright law.44 The problem arises in defining the “public interest.” Does the public interest lie in providing copyright owners with exclusive rights that may be invaded only when the First Amendment requires it? Or in codifying the fair use defense, did Congress delegate to courts the authority to grant the public access to copyrighted works when the public benefit outweighs the private harm to the copyright holder? Courts have not provided consistent answers to these questions, and as a result, the constituencies of copyright are locked in a struggle to locate the public interest, to define “fair use,” and to determine the meaning of copyright itself.






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