This Essay presents a novel proposal for counter balancing "copyright overspills." In the background of the discussion is the common reality of users succumbing to rights holders' attempts to license uses which are most likely fair uses or completely free of copyright protection. These practices have attracted considerable attention in recent literature. Most scholarly proposals in this context emphasize the need to clarify the contours of the fair use doctrine and to remove doctrinal ambiguities. Yet these initiatives are probably insufficient to overcome users' risk aversion in copyright markets due to an inherent structural imbalance within copyright law. While the law is designed around the prevailing narrative of providing an incentive for innovation, it is quite oblivious to providing an incentive to challenge copyright overspills. The Essay argues, then, that users should be provided with an actual incentive to challenge undue attempts to broaden the scope of copyright. The proposal draws on the experience acquired in other branches of intellectual property. More specifically, it is inspired by the unique system of incentives created under the Hatch-Waxman Act in order to encourage generic pharmaceutical companies to challenge pharmaceutical patents. These incentives have led to a significant rise in the number of patent challenges in the pharmaceutical field. In the spirit of the Hatch-Waxman regime, the Essay discusses the introduction of an incentive to challenge into copyright law to offset copyright overspills. It then proposes to develop an affirmative copyright misuse doctrine, which would entitle successful challengers of copyright overspills to statutory damages. Beyond the doctrinal proposals, the Essay's more fundamental conclusion is that, in order to achieve the desired access-incentive equilibrium, copyright law should not be concerned merely with providing an optimal degree of incentive to innovate but also with providing users with an adequate incentive to challenge.
Mich. Telecomm. & Tech. L. Rev.
Available at: http://repository.law.umich.edu/mttlr/vol18/iss1/4