ABSTRACT
Before embarking on my analysis, however, some preliminary ex planation of both the fair use defense and the purposes of the Copy-
right Act is in order. The Patent and Copyright clause of the Constitu tion enables Congress to enact laws that “Promote the Progress of Science and Useful Arts.”4 The Copyright Act was enacted under this grant of power, and so is ostensibly meant to serve this Constitutional purpose. The Constitution goes further than this, however, and offers some specific guidelines on how this goal is to be achieved: “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”5 The Constitu tional grounding of the Copyright Act is important, for it establishes that a copyright is a functional monopoly, meant to serve the dominant purpose of promoting social progress. The reward to the author is the method used to achieve this purpose; it is not itself the purpose of the state grant. In addition to the limits imposed by the Constitution, the case of Wheaton v. Peters6 dispelled any lingering doubts about the importance of rewarding authors in American copyright law, de ciding that copyright law is exclusively grounded in state grant, and has no independent “natural rights” status. The distinction between the “natural rights” and “ state grant” conceptions of copyright law is critical, for it determines the baseline assumptions against which the provisions of the Copyright Act must be measured. In the case of the “natural rights” conception, the starting point is the absolute right of the author to his creation, and to the monetary rewards from the exploitation of that creation.7 Any derogation from this starting point is correctly seen as a subsidy moving from the creator to the public. In the case of the “ state grant” conception of copyright, the starting point is the absolute freedom of ideas and the unrestricted movement and use of physical copies of creative works. The copyright monopoly, which places restrictions on works after they have passed into the hands of the public,8 must be justified against the backdrop of this state grant. In this second conception, the copyright is a grant rather than a right, and so is really a subsidy granted by the state to the author. To the extent that this state grant falls short of an absolute property right, as when fair use operates, the shortfall cannot be prop erly referred to as a subsidy moving from authors to the public.
