Copyright as Trade Regulation

A. The “Encouragement of Learning”

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A. The “Encouragement of Learning”

In pursuing private interests, private actors sometimes engage in behaviors that threaten the public interest. The government responds by seeking to modify those behaviors, whether legislatively (by enacting statutes) or administratively (by providing agencies with the authority to engage in rulemaking and enforcement). Copyright law itself is a response to behaviors that threaten the public interest: Because copyrightable works may be copied and distributed without consuming the original, creators who released their work to the public without the protection of copyright law soon would find themselves competing with others for sales of copies of their own works. Unable, as a result, to recoup the costs of their labors, creators might reduce their investments in creation, thus leading to the creation of fewer copyrightable works. To prevent this harm, Congress has acted legislatively to “secur[e] for limited Times to Authors … the exclusive Right to their Writings.”45 In granting exclusive rights to creators, the Copyright Act promotes the public interest by promoting “the encouragement of learning”46—a goal that surely is consistent with the constitutional injunction to “promote the Progress of Science.”47

For the foregoing reasons, the grant of exclusive rights to creators is widely thought to promote the public good. As courts are fond of reminding litigants, even James Madison wrote in 1788 that “[t]he public good fully coincides ... with the claims of individuals.”48 But this statement is only partly correct: To be sure, the enterprise of creation depends on granting creators the right to prevent others from making at least some uses of their works, and accordingly, the public good flows from granting at least some “individual claims” in works of authorship. But as Madison likely would acknowledge today, the “public good” does not always and only reside in the grant of exclusive rights. The phrase “encouragement of learning” itself suggests as much: If the enterprise of learning depends upon the creation of copyrightable works, it also depends on the quality and diversity of those works, as well as their proliferation and distribution throughout society. It may even depend on their proliferation and distribution in the form of tangible copies. It certainly depends on giving the public the right to respond to those works in sundry ways. And none of those things is possible without giving the public at least some access to copyrighted works.

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