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For some time now, scholars have come to recognize the existence of numerous structural infirmities deeply embedded within the modern copyright system. Most of these infirmities have been attributed to internal tensions within copyright law and policy, including the competing philosophies of access and control, use and exclusion, and rights and exceptions. Professor Stadler’s insightful article documents these tensions and proposes a new way of mediating them. She argues that copyright law is best understood as instantiating a restriction
on unfair competition and, consequently, that it should do little more than protect creators of original works from “competitive harm” in a previously identified (“relevant”) market. She goes on to propose that this principle be applied exogenously in determining the structure of copyright, and that the copyright grant be reformulated to consist of no more than an exclusive right to distribute works publicly.

While I share Professor Stadler’s belief that copyright law ought to be visualized as a doctrine of unfair competition, my concern lies with her solution, which I believe does not commit copyright law sufficiently to the goal she identifies for it. This Response argues for an alternative conception of unfair competition within copyright doctrine: one that is premised on a restitutionary ideal and focuses on identifying unfair competition endogenously and contextually. If unfair competition is really what copyright is all about, then its principles ought to influence copyright law at every stage and not just in its ex ante structuring, as Professor Stadler suggests. Part I sets out the salient features of Professor Stadler’s proposal – characterized by its use of unfair competition to structure copyright’s exclusive rights framework. Part II contrasts this with a functional approach to unfair competition within copyright law. Part III then concludes by illustrating how the functional variant might work outside the confines of the reproduction right.


Intellectual Property Law | Law


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