Copyright and the Rule of Reason

Intellectual Property, Competition Policy and Antitrust and Copyright and Trademark

Article Snapshot


Christopher Sprigman


Journal on Telecommunications & High Technology Law, Vol. 7, No. 2, pp. 317-342, Spring 2009


This article analyzes the basic principles of copyright law and suggests policy reform moving forward.

Policy Relevance

In order to balance the competing interests of copyright law, the system should distinguish between clear types of infringement that result in detriment to the copyright holder and more ambiguous cases where damage is less clear.

Main Points

  • The purpose of copyright law, as stated in the Constitution, is to “promote the Progress of Science and the useful Arts.” Copyrights attempt to promote this goal by giving the creator of new work the exclusive right to copy, promote, and distribute their work.
  • Currently, our copyright system imposes strict liability on individuals who infringe on the copyrights of another. Infringement includes wholesale copying of the work as well as the creation of derivative works, which seek to build new material using the copyrighted material as a foundation.
  • The current system successfully protects the original creator of new work, but may go too far in preventing secondary work and actually run counter to the policy goal of incentivizing creation. Fair use exceptions to copyright currently allow for some types of use, but may not be sufficient.
  • One possible solution to this problem would be to reform copyright law so that it distinguishes between clearly harmful conduct, such as unauthorized copy and sale of protected work, and less harmful conduct, such as the creation of an unauthorized spin off.
    • Work that is clearly harmful would be held to the current strict liability rules, perhaps including limited fair use defenses.
    • Less directly harmful infringement could be held to a less strict standard. Copyright holders could be required to prove that they have been harmed by the potentially infringing conduct in some substantial way.
  • A system where these two categories of infringement were treated differently would provide the full measure of protection against individuals trying to directly capitalize on the creative work of another. At the same time, this system would also allow for a broader range of new work to be created without fear of infringement claims.
  • This system of copyright reform does not solve the complex issue of defining what constitutes harm. However, this new system would serve to better achieve the policy goals set out by the Constitution.


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