Promoting Progress with Fair Use

Joshua N. Mitchell

Duke Law Journal, Volume 60, April 2011, Number 7

The Intellectual Property (IP) Clause [of the US Constitution provides that Congress has the power “to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In the realm of copyright, Congress and the courts have interpreted the clause as granting Congress a power not to promote progress but to establish limited IP monopolies. To return to an understanding of the IP power better grounded in the constitutional text, Congress and the courts
should ensure that any IP enactment “promote[s] . . . Progress” by considering whether it improves the quality or quantity of knowledge and aids the dissemination of knowledge, and whether it does so better than prior IP enactments. The courts can exercise the fair-use doctrine to aid in this re-constitutionalization of IP law by applying a fifth fair-use factor. This proposed fifth factor would balance the progress-promoting value of the alleged infringer’s use against the progress-promoting value of enforcing the copyright holder’s rights. Reviewing courts should presume that any alleged infringement is fair if it promotes progress better than the enforcement of the copyright.