The Impact of Codification on the Judicial Development of Copyright

Document Type

Book Chapter

Publication Date



Despite the Supreme Court’s rejection of common law copyright in Wheaton v. Peters and the more specific codification by the Copyright Act of 1976, courts have continued to play an active role in determining the scope of copyright. Four areas of continuing judicial innovation include fair use, misuse, third-party liability, and the first sale doctrine. Some commentators have advocated broad judicial power to revise and overturn statutes. Such sweeping judicial power is hard to reconcile with the democratic commitment to legislative supremacy. At the other extreme are those that view codification as completely displacing courts’ authority to develop legal principles. The problem with this position is that not all codifications are intended to be comprehensive or to displace all preexisting law.

One way to reconcile democratic legitimacy with current practice would be to adopt a less categorical approach that recognizes that the proper scope for judicial development is itself a question of legislative intent. In some cases, Congress has affirmatively delegated to the courts the explicit authority to continue to develop the law. In others, Congress modeled certain provisions of the copyright statutes on patent or other areas of law, which provides leeway for judicial development. Either approach would not conflict with the democratic commitments reflected in legislative supremacy.

Applying this framework to the four areas of law of judicial development identified above reveals that the courts’ record in applying these principles consistently is mixed. With respect to fair use and misuse, the courts have adopted readings that either follow or are consistent with legislative intent. With respect to third-party liability and the first sale doctrine, the courts have invoked broad analogies between copyright and patent law or canons of construction without analyzing directly whether such approaches were consistent with legislative intent.


jurisprudence, legisprudence, legislation, dynamic statutory interpretation, equity of the statute, construction, separation of powers, intellectual property, copyright infringement, patent law, democracy, Folsom, Kalem, Sony, Grokster, Bobbs-Merrill, Quality King, Kirtsaeng, precedent

Publication Title

Intellectual Property and the Common Law

Publication Citation

In Intellectual Property and the Common Law (Shyamkrishna Balganesh, ed., 2013).