Honest Copying Practices

Joseph P. Fishman*

One of intellectual property theory’s operating assumptions is that creating is hard while copying is easy. But it is not always so. Copies, though outwardly identical, can come from different processes, from cheap digital duplication to laborious handmade re-creation. Policymakers around the world face a choice whether such distinctions should affect liability. The two branches of intellectual property that condition liability on actual copying, copyright and trade secrecy, give different answers. Both in the United States and elsewhere, trade secrecy regimes distinguish between copying methods deemed illegitimate and those deemed legitimate, what international treaties call “honest commercial practices.” Copyright regimes, by contrast, are largely indifferent. They focus on the end product, not the process of its production.

Trade secrecy and copyright are not often seen as a natural pair, but on the question of how copies are made, the former has much to offer the latter. This Article examines how a defendant’s method of copying could function as a policy lever within international copyright law. Because differences in method can matter to copyright policy’s intended beneficiaries—owners, readers, and follow-on authors—it should also matter to copyright policy’s crafters. Yet before that goal can be implemented, there seems to be a stumbling block. International treaty commitments require member states to provide owners an exclusive reproduction right that covers copying performed in any manner. Nevertheless, that commitment has not stopped states from treating laborious copying differently than cheap copying in limited contexts, such as private uses. The problem is that the normative rationale underlying these limited exceptions remains understudied and therefore unsystematically implemented. A closer inspection reveals that the same flexibilities in international law that have allowed states to make these exceptions also allow them to consider the defendant’s method of copying as a structural element of the reproduction right itself. The resulting regime would look something like trade secrecy’s tolerance for honest commercial practices—what I dub here “honest copying practices.”

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© 2017 Joseph P. Fishman. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Assistant Professor of Law, Vanderbilt Law School. For helpful comments and conversations, I thank Susy Frankel, Christophe Geiger, Daniel Gervais, Sam Ricketson, Elizabeth Rowe, Matthew Sag, and participants at the Thirty-Fifth Annual Congress of the Association for the Advancement of Teaching and Research in Intellectual Property. I am also grateful to John Davidson for research assistance. Any errors that remain are the result of my own honest practices.