copyright law should protect against the kind of free-riding that is likely to undermine the incentives to produce and distribute creative works. Given copyright’s purpose, what we really need to ask is whether a particular use is likely to harm incentives to create or disseminate a copyrighted work and whether the use itself benefits creativity and innovation. Commercial exploitation is not always a good proxy for assessing these harms and benefits. Rather, the use of a copyrighted work should be considered non-infringing when that use: falls outside the range of uses a copyright holder would rely on for incentives to create the work, increases demand for the original work or its usual derivatives more than it decreases that demand, or is otherwise unlikely to reduce a copyright holder’s ex ante incentives to create or distribute the work.
Harm to incentives as the test for copyright infringement
In Copyright Harm and Reform, Professor Christina Bohannan (Univ of Iowa) argues that the distinction between unlicensed "personal" and "commercial" uses of copyrighted works is not a good test for distinguishing between permitted and infringing uses. Instead, she argues, that