Et Tu, Fair Use? The Triumph of Natural Law Copyright
| Autor | John Tehranian |
| Cargo | Abogado. Profesor de Derecho y Director del Law School's Entertainment Law Program, Chapman University, California, Estados Unidos |
| Páginas | 207-238 |
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Anuario Andino de Derechos Intelectuales.
Año IV - N.º 5. Lima, 2009
Et Tu, Fair Use? The Triumph
of Natural Law Copyright*
JOHN TEHRANIAN**
Sumario: I. Introduction. II. The seeming triumph of instrumentalism: copyright law in the early years. 2.1 The
English background: Monopoly and the Statute of Anne 2.2 The creation of American Copyright 2.3
Wheaton: The apparent victory of utilitarian copyright. 2.4 The Early copyright decisions: Abrid-
gement, translation and the focus on transformative use. III. Natural Law Redux: The development
of the fair use doctrine. 3.1 Folsom v. Marsh: justice story and the betrayal of a utilitarian vision of
copyright. 3.2 The hegemony of natural law copyright: fair use and its progeny. IV. Transformative
use and progress in the arts. 4.1 The need for transformative use. 4.2 The failure of fair use to protect
progress in the arts. 4.3 Borrowing and progress in the arts: smells like teen spirit. V. Conclusion.
I. INTRODUCTION
Since its advent in 1841, the fair use doctrine has been hailed as a powerful check on
the limited monopoly granted by copyright. Fair use, we are told, protects public access to
the building blocks of creation and advances research and criticism. This Article challenges
the conventional wisdom about fair use. Far from protecting the public domain, the fair
use doctrine has played a central role in the triumph of a natural law vision of copyright
that privileges the inherent property interests of authors in the fruits of their labor over the
utilitarian goal of progress in the arts. Thus, the fair use doctrine has actually enabled the
expansion of the copyright monopoly well beyond its original bounds and has undermined
the goals of the copyright system as envisioned by the Framers.
In supporting this claim, this Article fi rst charts the anti-monopolistic impetus for
federal copyright protection and refl ects on the original understanding of copyright as
epitomized by a series of early cases on the rights of translation and abridgement. To the
Framers, copyright was a form of compensation—a quid-pro-quo for a benefi t granted to
society— not a natural right to which authors was inherently entitled for their creative
efforts. Specifi cally, the Copyright Clause of the Constitution, the 1790 Copyright Act,
and the early jurisprudence of the Republic envision copyright as a property right limited
in both scope and duration with the particular goal of encouraging the dissemination of
knowledge. Thus, while early copyright laws prohibited slavish copying of a protected
* Este artículo se publicó en UC Davis Review, Vol. 38, 2004-2005. Se reproduce con expresa autorización
del autor.
** A.B. Harvard University, 1995; J.D., Yale Law School, 2000; Associate Professor, University of Utah, S.J.
Quinney College of Law. The author would like to thank the University of Utah College of Law Research
Fund for its support.
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ANUARIO ANDINO DE DERECHOS INTELECTUALES
DERECHO DE AUTOR
work, there was no such interdiction against transformative uses of a protected work, as
such uses were considered accretive to progress in the arts. Ultimately, however, this notion
of copyright infringement would undergo a radical transformation.
Justice Story’s fair use test set into motion a striking departure from this original
heuristic by e introducing long-spurned natural law elements into the copyright calculus.
Transformative uses were no longer non-infringing per se. Instead, any use of a copyrig-
hted work, whether partial or complete, literal or non-literal, was considered potentially
infringing, excusable only after the alleged infringer proffered an effective fair use defense.
The fair use elements, which included the amount and substantiality purloined from the
copyrighted work, the nature of the copyrighted work, and the harm done to its economic
value, focused more on what was taken from a copyrighted work than what use was made
with the copyrighted work.
Thus, fair use privileged the inherent property rights of an author in the fruits of
her intellectual labor above all else, including the central goal of the federal copyright
system—progress of the arts. As a result, this Article calls for a serious reassessment of
the role of fair use in the infringement calculus, especially in an age where networked
computers and malleable digital content has enabled new forms of artistic and post- mo-
dern experimentation.
II. THE SEEMING TRIUMPH OF INSTRUMENTALISM: COPYRIGHT LAW IN
THE EARLY YEARS
Before assessing the radical transmogrifi cation in copyright jurisprudence precipitated
by Justice Story’s fair use test, it is critical to understand copyright law in the years prior to
1841. To this effect, an examination of the origins of copyright law, the text of the Consti-
tution and the fi rst Copyright Act, and the reasoning adopted by a series of cases analyzing
the rights to translate and abridge copyright works is particularly instructive.
2.1. The English Background
First, the context in which the Framers drafted the Copyright Clause in 1787 serves
to illuminate the philosophical underpinnings of federal copyright law. Indeed, copyright
protection originally stemmed from profoundly anti-monopolistic impulses.1 Prior to the
enactment of the world’s fi rst copyright statute, the British Crown had issued royal letters
patent that had granted the Stationers’ Company, a guild of booksellers and printers, a
virtual monopoly in publishing in England. Under the letters patent system, the Stationers’
Company (rather than authors) alone held copyrights in works, and these copyrights lasted
perpetually. As the sole guild licensed to publish in England, the Stationers’ Company also
acted as a royal censor by denying publication to controversial writings.
Parliament sought to break up the publishing monopoly with the passage of the
Statute of Anne. First, the Statute granted authors, rather than publishers, the copyright
1 Tyler T. Ochoa & Mark Rose, The Anti-Monopoly Origins of the Patent and Copyright Clause, 49 J.
Copyright SOC’Y U.S.A. 675 (2002).
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ET TU, FAIR USE? THE TRIUMPH OF NATURAL LAW COPYRIGHT
DERECHO DE AUTOR
in their works and the exclusive right to publish their intellectual creations.2 Second, the
duration of copyright was severely curtailed, going from perpetuity to a mere 14 years3
(with the possibility of a single renewal if the author were still alive at the end of the 14-
year term)4 for all new works. Meanwhile, existing works received 21 years of copyright
protection.5
The Statute of Anne’s anti-monopolistic origins were inextricably tied to the utilitarian
philosophy underlying the Act. The perpetual copyright formerly enjoyed by publishers
at common law and through the Crown’s letters patent was legitimated through an appeal
to the natural rights of authors in their labor, regardless of the impact on progress in the
arts. The Lockean logic was seemingly irrepressible: By putting labor into their intellectual
creations, authors automatically earned a natural property right in their works.6 This right
was perpetual, just like the right to real property or chattel, and it passed, undiminished,
to publishers when they purchased works from authors.7
The Statute of Anne explicitly rejected this notion. The title of the Statute refl ected
its true purpose. As “[a]n act for the encouragement of learning, by vesting the copies
of printed books in the authors or purchasers of such copies, during the times therein
mentioned,”8 the Statute sought to maximize the encouragement of learning, not to pro-
tect the inherent property rights that authors (or publishers) possessed in their works. In
fact, a preamble concerning “the undoubted property” of authors was removed prior to
the Act’s passage.9 Thus, to the extent that property rights were granted in intellectual
creations, they were endured by legislative fi at, not natural law, and were tolerated for
instrumental purposes.
2 Statute of Anne, 1709, 8 Anne, ch. 19 (Eng.).
3 “[T]he author of any book or books already composed, and not printed or published, or that shall hereafter
be composed, and his assignee or assigns, shall have the sole liberty of printing and reprinting such book
and books for the term of fourteen years, to commence from the day of fi rst publishing the same, and no
longer.” 8 Anne, ch. 19 (1710).
4 “[A]fter the expiration of the said term of fourteen years, the sole right of printing or disposing of copies
shall return to the authors thereof, if they are then living, for another term of fourteen years.” Id
5 “[T]he author of any book or books already printed, who hath not transferred to any other the copy
or copies of such book or books, share or shares thereof, or the bookseller or booksellers, printer or
printers, or other person or persons, who hath or have purchased or acquired the copy or copies of
any book or books, in order to print or reprint the same, shall have sole right and liberty of printing
such book and books for the term of one and twenty years, to commence from the said tenth day of
April, and no longer.” Id.
6 See 2 JOHN LOCKE, TWO TREATISES ON CIVIL GOVERNMENT §§ 24-51 (1924). LOCKE, supra
note , at 305-06. As Locke argued, “Though the Earth, and all inferior Creatures be common to all Men,
yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour
of his Body, and the Work of his Hands, we may say, are property his. Whatsoever then he removes out of
the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something
that is his own, and thereby makes it his Property.”
7 Ochoa & Rose, supra note 1, at 683.
8 Statute of Anne, 1709, 8 Anne, ch. 19 (Eng.).
9 Mark Rose, authors and owners: The invention of copyright 45 (1993).
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