Promoting Progress with Fair Use

Joshua Mitchell

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Intellectual property (IP) law in the United States is off course and headed onto the shoals of ever-increasing protectionism. Copyright law, in particular, has come uncoupled from its constitutionally defined purpose. A tightly circumscribed right intended to incentivize creativity and the spread of knowledge has instead become an ever-expanding monopoly over creative works and the means of their dissemination. Industries that rely on IP control increasingly resort to legislation and litigation instead of innovation in their efforts to maintain long-term control over new creations. And these copyright industries have, in the latter part of the twentieth century and the first decade of the twenty-first, found willing allies in the courts and in Congress, over whose eyes the copyright industries have become adept at pulling wool.

Article I, Section 8, Clause 8—the IP Clause of the U.S. Constitution—grants 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.” This Note suggests that the courts add a fifth factor to the familiar fair-use test—a factor that specifically asks whether the use of a copyrighted work “promote{s} the Progress of Science and useful Arts” better than the protection of the original author’s rights does.

Interpreting the IP Clause

The IP Clause grants Congress the power to make laws providing exclusive rights to authors and inventors. This power conflicts with the restrictions placed on Congress by the First Amendment. Consistency with these restrictions requires a narrow, circumscribed reading of the IP Clause. Fortunately, the text of the Clause already provides appropriate limitations—if only Congress and the courts could be convinced to take them seriously.

A. The Plain Meaning of the IP Clause

Congress may only legislate pursuant to one of its constitutionally enumerated powers. Those affirmative legislative powers reside in Article I, Section 8 of the Constitution, a Section that comprises a single sentence with a series of grammatically parallel infinitive phrases, each granting Congress a specific power or cluster of powers.

The IP Clause grants 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 IP Clause’s structure comprises two elements: the progress-promoting clause (“{t}o promote the Progress of Science and useful Arts”) and the monopoly-granting clause (“by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”). The most natural, plain-language reading of the IP Clause is that the progress-promoting clause, not the monopoly-granting clause, grants power: “{t}he Congress shall have Power . . . {t}o promote the Progress of Science and useful Arts.” IP enactments that do not promote progress are thus outside the scope of the IP Clause.

The monopoly-granting clause should then be viewed as the means by which Congress may exercise its progress-promoting power. The grant of a period of exclusivity to authors and inventors promotes the release of their creations to the public, increasing the general storehouse of knowledge. In addition to serving as the means of exercise, the monopoly-granting clause places a cluster of discrete limitations on the exercise of the progress-promoting power. Congress may, for example, only secure copyright- and patent-style rights over “Writings and Discoveries,”  to “Authors and Inventors,” and for “limited Times.”

B. Recent Interpretations of the IP Clause

Congress has largely ignored the limits of its IP Clause power. In part, this is because courts have been reluctant to rein in Congress’s more egregious excesses in this domain. In Eldred v. Ashcroft, for example, the Supreme Court dismissed the progress-promoting clause as “preambular language.” At a minimum, the Eldred Court may be described as receptive to the argument that the clause “places no substantive limit on Congress’ legislative power,” at least in the context of copyright. Seven Justices voted to uphold the constitutionality of the Copyright Term Extension Act (CTEA), which extended the term of existing copyrights by twenty years. Instead of reading the progress-promoting clause as a grant of power, the Court read it as the “end” or the “objective” to which Congress may legislate. This reading allowed the Court to avoid closely considering whether the CTEA actually promotes progress and instead to skip directly to a rational-basis review of the CTEA, focusing on the “limited Times” language of the IP Clause—a review the Court performed with the usual extreme deference to Congress. Justice Ginsburg’s opinion for the Court concluded that the CTEA was a “rational exercise of the legislative authority conferred by the {IP} Clause” without once stating what that legislative authority might be.

The Court held that, by enacting the CTEA, Congress had effectuated “the ends of the Clause” and “the constitutional aim.” Even assuming that this “ends” and “aim” language refers to the progress-promoting clause, the Court failed to accord that clause its correct weight. Congress may come up short of its ends, miss its aim, or fail to secure its objective. It may not exceed its power.

Courts at least have the excuse that they must in general look to the arguments presented by the parties to find solutions to the matters before them. Congress faces no such limitations and boasts far-reaching factfinding powers; yet its enactments lie at the root of the overreaching that characterizes the current state of U.S. IP law.

In other areas, Congress has demonstrated that it knows how to impose proper limits on its legislation, but that has not always been the case in IP enactments. Congress’s motives—frequently influenced by industry lobbying—have not always been faithful to the constitutional text. The Congress that passed the CTEA, for example, seems to have been motivated in no small part by a few members’ desire to extend copyright terms as far as possible without falling afoul of the “limited Times” provision. Further, Congress has appeared susceptible to lobbying pressure from industry groups like the Motion Picture Association of America (MPAA) and its music-industry counterpart, the Recording Industry Association of America (RIAA), which push for increased—and not obviously progress-promoting—protections, to the detriment of Congress’s constitutional responsibilities.

Interpreting the Grant of Power: What Does It Mean to “{P}romote the Progress of Science and Useful Arts”?

Practices that fall outside the constitutional mandate to promote progress are outside of Congress’s power. Determining whether a given piece of legislation “promote{s} the Progress of Science and useful Arts,” though difficult, is not impossible. The courts and Congress should determine whether a given enactment promotes progress by answering the following three questions:

1.Is it reasonable to believe that the law will encourage an increase in the quality or quantity of knowledge?

2.Is it reasonable to believe that the law will encourage the dissemination of knowledge?

3.Is it reasonable to believe that the encouragement this law provides either to the increase of knowledge or to the dissemination of knowledge will be an improvement over the encouragement provided by existing laws?

A. “Progress.”

Several definitions of “Progress” have emerged over the past decade. One view sees progress in terms of qualitative advancement: the progress of knowledge is promoted by those works and activities that increase knowledge both in kind and in amount. A second view, which its adherents claim hews closer to the Framers’ understanding of the term, conceives of progress as a physical motion, which, in the context of IP, connotes the dissemination or spread of knowledge.

A better reading is that “Progress” requires both qualitative advancement and dissemination. A work that advances knowledge in some field but that is not disseminated cannot be said to have promoted progress. Similarly, a work that is disseminated among the masses but that does not expand the boundaries of knowledge is not progress promoting.

B. “Promote.”

Although a great deal more scholarly attention focuses on what “Progress” means, the Supreme Court has weighed in instead on how to define “promote,” stating that it means “to stimulate, to encourage, or to induce.” But “promote”—like “Progress”—also includes connotations of forward motion or advancement. When Congress legislates pursuant to the IP Clause, its legislation must offer some modicum of improvement of the incentives to progress over those provided by current legislation. An incentive—a device “to stimulate, to encourage, or to induce”—provides a spur where none existed before or where the existing one was insufficient to generate the desired behavior.

Thus, the third question to ask about any given piece of IP legislation is whether it is reasonable to believe that the encouragement the law will provide either to the increase or the dissemination of knowledge will be an improvement over the encouragement provided by existing laws.

Limiting the Damage: A Judicial Solution?

There is no one-size-fits-all solution to the problem of IP overreaching. Righting the direction of IP policy in the United States will require concerted efforts by both the legislature and the judiciary. That cooperation is, concededly, unlikely.

This is not to say, however, that courts’ quivers are empty when they see parties urging applications of copyright or copyright-related laws that are progress-retarding or progress-neutral. Courts may rule that an alleged infringer whose use is more progress-promoting than the allegedly infringed copyright is instead making a fair use of the copyrighted material.

A. A New Fair-Use Factor

Section 107 of the Copyright Act states that “the fair use of a copyrighted work . . . is not an infringement of copyright.” Hence, a person making a fair use of a copyright holder’s work is not liable to that copyright holder. Section 107 does not offer a definition of fair use; instead, it provides two sets of tools to guide the court in its analysis of whether an otherwise-infringing use should be considered fair. The first tool is a nonexclusive list of “purposes” to which a fair use might be put. The second tool is a nonexclusive list of four factors that courts must consider “in determining whether the use . . . is a fair use”:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The fair-use doctrine offers courts a remedy for situations in which the literal application of a copyright law would lead to an absurd or undesirable result. Pressing fair use into service to ensure that copyright promotes progress is not a new idea; indeed, as the Supreme Court held in Campbell v. Acuff-Rose Music, Inc., the doctrine’s goal is to “fulfill copyright’s very purpose, ‘{t}o promote the Progress of Science and useful Arts,’” and courts must weigh the enumerated factors “in light of the purposes of copyright.” Neither Acuff-Rose nor previous scholarship in this direction, however, has provided the courts with sufficient guidance in balancing the relevant concerns.

That balance could be achieved with a fifth fair-use factor, making explicit the weighing of the progress-promoting clause with respect to the work of each of the parties. Thus, in addition to the other four factors, courts should consider the effect of the alleged infringer’s use on the promotion of the progress of science and useful arts, and whether that use better serves the progress-promoting purpose than does enforcement of the copyright holder’s rights over the copyrighted work. To determine the relative levels of progress promotion, courts should look at each use with the three questions from Part II in mind.

In conducting this analysis, courts should balance the use of the work against the progress-promoting value of enforcing the copyright holder’s rights, rather than simply looking at the progress-promoting value—if any—of the work itself. Two uses of the same work might have different progress-promoting values. For example, verbatim copying for one’s personal use is less likely to promote progress than is the creation of a derivative work.

There are two situations in which a court could find that this fifth fair-use factor favors the alleged infringer. In the first situation, enforcement of the copyright holder’s rights is progress retarding or progress neutral, and the alleged infringer’s use promotes progress. In such a situation, this proposed new factor should raise a presumption that the alleged infringer’s use is fair, a presumption rebuttable only by a finding that all four of the other factors weigh against fair use.

The second situation in which a court might find that the new factor favors the alleged infringer is when the copyright holder’s use promotes progress, but the alleged infringer’s use promotes it better. Because the underlying copyright promotes progress—thus satisfying the constitutional requirements for copyright and therefore making the use a subject fit for congressional legislation—the proposed new factor should be treated as equal in weight to the other four, with no presumption tied to it. This reduction in significance balances the consideration that the progress-promoting clause contains no requirement that Congress promote progress by the best means available against the consideration that a court should accord some weight to a use’s more efficient or effective promotion of progress.

B. Promoting Progress in the Aggregate

Applying this fifth fair-use factor would allow attorneys representing alleged infringers to argue that, in the aggregate, individual acts of what would otherwise be copyright infringement can promote progress better than can the enforcement, against all alleged infringers, of the underlying copyright.

In the 1942 Commerce Clause case Wickard v. Filburn, the Supreme Court held that Congress could legislate in a manner that reached individual farmers’ use of their own wheat, despite that use’s purely intrastate nature. Key to this determination was the finding that although a farmer’s “contribution to the demand for wheat may be trivial by itself{, that} is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.”

Just as individual, intrastate acts can have a judicially and congressionally cognizable negative effect on interstate commerce, individual acts of alleged copyright infringement can have a judicially cognizable positive effect on progress. The collective action of, for example, one million individuals adopting a disruptive new technology (be it the VCR or peer-to-peer file-sharing software) places pressure on the industries involved to adapt and innovate—the kind of “Progress” the Framers thought Congress should promote. In such situations, and especially when faced with an enactment that has been shown to be contrary to innovation in some of its applications, a judge reviewing the individual adopter’s case should consider a finding of fair use.

C. Effects of Expanding Fair Use

Addition of this fifth fair-use factor would have a destabilizing effect on many existing copyrights. But because the fair-use analysis is dependent on individualized determinations, the effect would necessarily be restricted to those situations in which courts actually find uses to be fair.

One area in which the proposed fifth factor might make a significant positive difference is in the use of orphan works. An orphan work is a work that is presumptively under copyright, but for which no copyright holder is known or can be located. These works represent a rich vein of culture that might provide education and entertainment to a new audience, or that artists and authors could mine for use in their own derivative works. Any use of an otherwise-unused orphan work—either its direct reproduction for distribution or its use in a derivative work—is likely to promote both the advancement and the spread of knowledge to a significantly greater degree than the protection of an unknown author’s right to prevent reproduction.

Imagine that a publishing house comes into possession of an anonymous, unpublished novel of great cultural significance. The publishing house could publish the book, gambling that the original author is unlikely to step forward. But if the author did then appear, the publisher could be liable for millions of dollars in statutory damages. Under current law, the use made by the publisher would almost certainly not be considered fair because the first three fair-use factors weigh heavily against a finding of fair use.

In this situation, however, a reviewing court would almost certainly find that the proposed fifth factor shifts the analysis in favor of a finding of fair use, because enforcement of the copyright holder’s copyright—as against the publisher—would likely be progress retarding, or at best progress neutral, while disseminating the work would be progress promoting. This finding would raise a presumption that the use was fair.

This expansion of the fair-use doctrine would help place copyright law back on course. Although its effects would destabilize some copyright holders’ rights in their copyrighted works, that destabilization would extend primarily to situations in which the copyright holder’s use was ineffective in advancing or disseminating knowledge. And in those cases, it seems unobjectionable for the courts to assist Congress in ensuring that its laws do not flout the Constitution.


One may hope that copyright’s swallowing of the public domain cannot get much worse—that IP protections are approaching a nadir beyond which policymakers will realize the folly of their ways and start steering the ship of American copyright policy away from the shark-infested shoals of ever-increasing IP protection. This Note is an attempt to provide one more navigational aid in the ever-growing panoply of scholarly opinion concerning copyright’s excesses. Courts considering copyright-infringement cases could place substantive limits on copyright holders’ monopolies on their works by finding fair use when it appears that others’ use of those works better effectuates the constitutional mandate of the IP Clause.


Copyright © 2011 Duke Law Journal

Joshua N. Mitchell graduated from Duke University School of Law in 2011 with a J.D., LL.M. in international and comparative law.

This Legal Workshop piece is based on the following note: Joshua N. Mitchell, Promoting Progress with Fair Use, 60 DUKE L.J. 1639 (2011).

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