Intellectual Privilege: Copyright, Common Law, and the Common Good by Tom W. Bell

Author:Tom W. Bell [Bell, Tom W.]
Language: eng
Format: epub, pdf
Publisher: Mercatus Center at George Mason University
Published: 0101-01-01T00:00:00+00:00

2. A SENTENCE-BY-SENTENCE EXPLANATION OF PROPOSED SECTION 107(B)

Section 107(b) would codify copyright’s misuse doctrine. Hitherto, courts have justified the doctrine by drawing comparisons to patent law, which has long had a codified misuse defense,35 and by invoking general principles of equity.36 Section 107(b) follows the Patent Act in codifying the copyright misuse defense, clarifying its scope, and defining its effect. Thus the statutory section proposed in this chapter, even if it never becomes law, serves to describe current doctrine and define the proper role of misuse in copyright policy.

Section 107(b) operates stepwise, through three sentences. The first sentence specifies when copyright misuse might occur. The second sentence describes the legal effect of the defense. The third sentence limits the scope of the doctrine. Taken as a whole, section 107(b) aims to ensure that, instead of combining copyright and contract law to limit fair use, copyright holders choose either the rights afforded under the Copyright Act or those afforded by contract law.

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