Journal of Intellectua l Property Law Volume 3 | Issue 1 Article 9 October 1995
The general object of this note is to examine the use of compulsory licenses' in copyright law. More specifically, it examines the increasing likelihood, although of questionable constitutionality, of judicially-imposed compulsory licensing as a remedy in copyright infringement cases. This Note asserts that compulsory licenses are a political compromise divorced from the policies behind the Copyright Clause of the United States Constitution. Congress imposed compulsory licensing in response to technological changes in information transmission, 2 thereby unwittingly extending copyright protection beyond the scope of the Copyright Clause. Compulsory licenses, while politically pragmatic, grant a copyright owner plenary rights instead of the bundle of exclusive rights ordinarily granted by copyright law. Additionally, this Note contends that because lower courts misunderstand the nature and scope of copyright law, they, misled by that confusion, are threatening to turn to compulsory licensing to settle conflicts between the litigants before them. 3 Such an ultra vires remedy should not be imposed because copyright law is purely a statutory construct, and only Congress is empowered by the Constitution to create the remedies for copyright infringement.

One has a natural right to intellectual property; in privacy, up until the time of publication;
thereafter one only has a statutory entitlement.

common law protects this proprietary interest of authors up until the time of publication.
Upon publication, statutory copyright pre-empts any perpetual, common-law protection
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