Comment by Janice E. Oakes
The United States Constitution grants to Congress the power ‘[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’ The rationale for conferring the limited monopoly of copyright is that the public benefits from the labors of authors and that the copyright monopoly serves to stimulate such creative efforts. The copyright law provides an economic incentive by granting the right to exclude others from certain uses of the copyrighted work. Defining the scope of this right involves a difficult balance between the interests of authors in the control and exploitation of their writings on the one hand, and society's competing interest in the free flow of ideas, information, and commerce on the other hand. Focusing on society's interest in access to certain information, a recent line of cases has excused substantial takings of copyrighted material as permissible ‘fair uses.’ After outlining the scope of copyright protection and discussing the fair use doctrine, this comment will retrace the emergence of a ‘public interest’ criterion and consider its long-term consequences. Lastly, in an effort to accommodate first amendment interests without undermining the creative incentive provided by copyright protection, an alternative criterion will be proposed—that of the necessity of the borrowing of copyrighted material.
About the Author
Janice E. Oakes.
Citation
59 Tul. L. Rev. 135 (1984)