Copyright and Time: A Proposal

Abstract

This Article argues that courts should adjust the scope of copyright protection by considering time as a factor in fair use analysis. More specifically, the longer it has been since a copyrighted work was published, the greater the scope of fair use should be. Up to now, most of the debate over the role of time in copyright law has focused on the controversial issue of copyright duration and term extension. By focusing so narrowly on the end of the copyright term, however, this debate has neglected the more significant issue of how time should affect the scope of copyright protection during the copyright term. This Article argues that exceptionally strong justifications exist for considering time expressly in setting the scope of copyright protection, and that fair use provides an ideal vehicle for such consideration, both doctrinally and theoretically. By considering time in fair use analysis, courts can adjust the scope of copyright protection to respond more dynamically to the changes that occur in authorial incentives, public access, and other copyright interests over the length of the copyright term. Consideration of time also provides a legitimate way for courts to inject public-regarding values into the process of setting the scope of copyright protection.