Limitations & Exceptions, Consumer Protection, and Competition Policy

By TAP Staff

Posted on June 10, 2010


This post is provided by Tara Wheatland, Copyright Research Fellow, Berkeley Center for Law & Technology at Berkeley Law School.

On April 9-10, 2010, The Berkeley Center for Law and Technology hosted a conference entitled Copyright @ 300: Looking Back at the Statute of Anne and Looking Forward to Challenges of the Future. This post presents a recap of one of many interesting and thought-provoking panels at the conference.

Read the entire conference summary:

Presenters covered a number of limitations on copyright, both from within copyright law itself and from external sources.  Professor Matthew Sag from DePaul University Law School uncovered some heretofore unexplored similarities between the modern law of fair use, namely the four-factor analysis of 17 U.S.C. § 107 and accompanying caselaw, and the “pre-history” of fair use, from 1710-1828.  The pre-modern doctrines of “abridgement” and “bona fide use” share several characteristics with today’s doctrine of fair use—including a focus on the amount of the use, the market effect of the use (especially whether the use substitutes for the original), and the concept of “transformative” uses. 

Professor Kenneth Crews from Columbia Law School covered the influence of history and geography on the development of a national copyright law, focusing specifically on exceptions applicable to libraries.  Professor Crews found that political and economic realities—such as familiar associations or major economic relationships with other countries with already-established copyright laws—often have a significant effect on legal evolution. 

Fred Von Lohmann, Senior Staff Attorney at the Electronic Frontier Foundation, discussed the doctrine of copyright exhaustion (commonly known as the “first sale” doctrine), and articulated a number of practical and policy-based reasons why this doctrine serves to further many of copyright’s fundamental justifications.  Among other things, a robust exhaustion right is consistent with the goals of supporting secondary markets for creative works, protecting rights in personal property, decentralization of access to creative works, and the preservation of cultural heritage. 

Thomas Vinje, an attorney with Clifford Chance, talked about the interaction between copyright law and competition law.  Although copyright law itself is in part designed to facilitate competition, as copyright law is shifting to become in essence an “industrial property” regime protecting new technologies, competition law may have an increasing role in moderating some copyright law disputes. 

  • Panel mp3
  • Lolly Gasaway, University of North Carolina, Chapel Hill School of Law (moderator)
  • Matthew Sag, DePaul University Law School - pdf
  • Kenneth Crews, Columbia Law School - pdf
  • Fred von Lohmann, Electronic Frontier Foundation
  • Thomas Vinje, Clifford Chance

This post is provided by Tara Wheatland, Copyright Research Fellow, Berkeley Center for Law & Technology at Berkeley Law School.