RETHINKING COPYRIGHT: PROPERTY THROUGH THE LENSES OF UNJUST ENRICHMENT AND UNFAIR COMPETITION

Abstract

† 1 Most of these infirmities have been attributed to internal tensions within copyright law and policy, including the competing philosophies of access and control, use and exclusion, and rights and exceptions. Professor Stadler's insightful article documents these tensions and proposes a new way of mediating them. 2 She ar- gues that copyright law is best understood as instantiating a restriction on unfair competition and, consequently, that it should do little more than protect creators of original works from "competitive harm" in a previously identified ("relevant") market. 3 She goes on to propose that this principle be applied exogenously in determining the struc- ture of copyright, and that the copyright grant be reformulated to consist of no more than an exclusive right to distribute works pub- licly. 4