52:2 Rules and Standards in Copyright


In the last decade, calls to recalibrate the copyright system’s mix of incentives have become nearly ubiquitous in copyright scholarship. Most such proposals start from the point of identifying a failure (systemic or market) and then offer a reform that compensates (and hopefully remedies) that specific failure. But, starting from the principle that copyright should provide optimal incentives to create and ending with a particular failure (and its cure), most reform proposals fail to distinguish between the purposes of copyright writ large and the purposes of the legal system that implements copyright. While copyright encourages creative work, the copyright system does so through the limited means of allocation, both by providing a rule for initially allocating copyrights and by facilitating reallocation of those rights, either through transactions or by allowing use. Thus, copyright is essentially temporal in its focus, with important decision points at the time of both the creation of a work and the decision of a potential user of that work to reallocate part of the work through a use. Similarly, rules and standards operate primarily by altering the time at which information is needed in order to determine whether a particular action is legal. Most reform proposals (which can be classified as compulsory licenses, damages-only regimes, or requirements for additional showings) would alter the mix of rules and standards in the copyright system. The Article approaches the reform question by seriously considering the timing of copyright allocations and reallocations and the effect of reform proposals on when information is available to copyright’s decision-makers (promulgators, authors, users, and adjudicators). The Article provides a concrete example in the history of the Audio Home Recording Act (a compulsory license) to demonstrate how reform proposals that ignore the dimension of time are likely to derail the development of creative works and their associated technologies. A better understanding of how the copyright system uses rules and standards—and honestly confronting the limits of both—can inform present and future reform proposals.