RULES AND STANDARDS IN COPYRIGHT
THOMAS B. NACHBAR
Professor of Law and Senior Fellow, Center for National Security Law
University of Virginia School of Law
In the last decade, calls to recalibrate the copyright system’s mix of incentives have become nearly ubiquitous in copyright scholarship. Most such proposals start from the point of identifying a failure (systemic or market) and then offer a reform that compensates (and hopefully remedies) that specific failure. But, starting from the principle the copyright should provide optimal incentives to create and ending with a particular failure (and its cure), most reform proposal fail to distinguish between the purposes of copyright writ large and the purposes of the legal system that implements copyright. While copyright encourages creative work, the copyright system does so through the limited means of allocation, both by providing a rule for initially allocating copyrights and by facilitating reallocation of those rights. By focusing on the purposes of copyright rather than the purposes of the copyright system, many reform proponents underestimate the systemic cost of their proposals. This paper examines the problem in the context of the copyright system’s use of rules and standards to effectuate its purpose. As the paper demonstrates, rules and standards have varying utility for making both initial allocations of copyrights and for facilitating reallocations of those rights. A better understanding of how the copyright system uses rules and standards – and honestly confronting the limits of both – can inform present and future reform proposals.