Creative Reading

Jessica Litman, University of Michigan

Abstract

In this short essay, a comment on Rebecca Tushnet’s Payment in Credit: Copyright Law and Subcultural Creativity, 70 Law & Contemporary Problems 133 (2007), I argue that copyright scholars have undervalued the copyright interests of readers, listeners and viewers. By ignoring the central importance of audience interests in the copyright scheme, we have all but conceded that the essential policy question in determining whether a use of copyrighted material should be lawful is the way the use looks from the viewpoint of the copyright owner. This approach fails to appreciate that reading, listening, viewing and playing commonly involve significant creativity, and a copyright law designed to encourage creativity in the production and dissemination of works of authorship should also encourage creativity in the works’ enjoyment. Our collective failure to pay sufficient attention to the interests of readers, listeners, and viewers is especially damaging to the overall fabric of copyright law, because in the past two decades we have acquiesced in two large, non-statutory expansions of copyright rights at the expense of reader and listener rights. First, we have accepted an expansive literal reading of the copyright act under which every use of a copyrighted work is either licensed, subject to a statutory exemption, or infringing. Second, we have failed to prevent the extra-legislative expansion of the individual enumerated copyright rights until they, together, have coalesced into a general-use right. Neither of those expansions appears to reflect Congress’s understanding of the copyright laws it enacted. Copyright experts have focused so much attention on giving copyright owners tools to prevent infringement that we have lost sight of the principle that that copyright owner control must be cabined so that it does not unduly threaten historical copyright liberties that have traditionally given readers, listeners, and viewers significant freedom to enjoy works of authorship.