160
p>Noncommercial
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Every realm is governed by copyright law, whereas before most creativity was not. The law now regulates the full range of creativity--commercial or not, transformative or not--with the same rules designed to regulate commercial publishers.
Obviously, copyright law is not the enemy. The enemy is regulation that does no good. So the question that we should be asking just now is whether extending the regulations of copyright law into each of these domains actually does any good.
I have no doubt that it does good in regulating commercial copying. But I also have no doubt that it does more harm than good when regulating (as it regulates just now) noncommercial copying and, especially, noncommercial transformation. And increasingly, for the reasons sketched especially in chapters 7 and 8, one might well wonder whether it does more harm than good for commercial transformation. More commercial transformative work would be created if derivative rights were more sharply restricted.
The issue is therefore not simply whether copyright is property. Of course copyright is a kind of "property," and of course, as with any property, the state ought to protect it. But first impressions notwithstanding, historically, this property right (as with all property rights36) has been crafted to balance the important need to give authors and artists incentives with the equally important need to assure access to creative work. This balance has always been struck in light of new technologies. And for almost half of our tradition, the "copyright" did not control at all the freedom of others to build upon or transform a creative work. American culture was born free, and for almost 180 years our country consistently protected a vibrant and rich free culture.
We achieved that free culture because our law respected important limits on the scope of the interest
