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Creation without RestraintPromoting Liberty and Rivalry in Innovation$
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Christina Bohannan and Herbert Hovenkamp

Print publication date: 2012

Print ISBN-13: 9780199738830

Published to Oxford Scholarship Online: May 2012

DOI: 10.1093/acprof:oso/9780199738830.001.0001

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Reclaiming copyright

Reclaiming copyright

Constitutional Review And Statutory Interpretation

(p.200) 8 Reclaiming copyright
Creation without Restraint

Christina Bohannan

Herbert Hovenkamp

Oxford University Press

The Copyright Act serves a combination of public and private interests. Where possible, conflicts between the two should be resolved in favor of the public interest. This approach would sort out some of the most pressing issues in copyright law today. The most troublesome aspects of copyright expansion over the past few decades include a longer copyright term, broad reproduction and derivative works rights, and digital rights in the Digital Millennium Copyright Act (DMCA) that prevent uses previously thought to be noninfringing. Yet, copyright doctrines such as the idea/expression dichotomy and fair use protect the rights of the public to use portions of copyrighted works. This chapter discusses how courts can use constitutional adjudication and statutory interpretation to define the scope of these provisions and resolve ambiguities among them in order to restore copyright's balance of incentives and access.

Keywords:   Copyright Act, public interest, fair use, copyright protection, copyright law, constitutional adjudication

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