Rights of First Entry in “derivative Markets”: Exploring Market Definition in Copyright

The case of Eldred v. Ashcroft focused the public’s attention on the question of the duration of a copyright owner’s right. An even more compelling problem is raised by the scope of the property right associated with copyright. Statutorily, the copyright owner is granted the exclusive rights of reproduction, distribution, adaptation, public performance, and public display subject to the doctrines of fair use, misuse, and statutory exceptions. The jurisprudential and policy question is how to interpret these five basic rights and their limitations. The interpretation of these rights determines whether users can make coursepacks, sample music, create parodies, reverse engineer software, bowdlerize movies, hyperlink to copyrighted expression, and other activities without the possible threat of an injunction and requirement of license from the copyright owner.