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This past month, the House Subcommittee on Courts, Intellectual Property, and the Internet held yet another hearing to discuss copyright reform. Aptly titled “The Scope of Copyright Protection,” it offered testimony from some of the most renowned scholars in the field. Yet, although the House and Senate conduct hearings and discuss intellectual property policy on a fairly routine basis, Congress has passed no comprehensive update to the 1976 Copyright Act since the dawn of the Internet. Why?
Congress and copyright are at an impasse. Recent testimony from both Vanderbilt’s own Professor Gervais* and the Register of Copyright, Maria Pallante [PDF], suggests that broad review and modernization are necessary to preserve a functioning copyright system. As we are well aware, the past few years have witnessed, for better or for worse, a sudden increased public interest in and calls for intellectual property reform. Whether this concern stems from consumer interest in access to technology, failed legislative endeavors like the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), or the myriad of encouraging policy conversations on the subject, it is clear that Congress must continue its efforts to craft an effective legal regime for the global network.
Copyright is a field dominated by special interests and “lobbynomics,” and it comes as no surprise that Congress has been slow to act. Some suggest that copyright’s political difficulties stem from a classic case of the apparent benefits masking subtle costs. Film, music, and publishing industries collect the rewards of socially inefficient higher protections, while the public, the market, and indeed much of the content industry itself is shortchanged down the road.
But there is hope! Hearings like these have become more frequent over the past year, and we can expect to see more this spring.
If Congress is seriously considering an overhaul to the Copyright Act, it must first address its conception of copyright in order to properly frame the debate. Asking the right questions at these hearings is critical to the understanding of where to focus reform efforts.
The stagnation of debate over the future of copyright law seems to stem, in large measure, from the tension between the property entitlement model and the regulated-market model. Embedded in this tension is the question of whether the analogy to physical property be called out as a legal fiction, as well as the question of what might takes its place. While largely a theoretical exercise, the articulation of a clear conception of the nature of copyright law will help members of Congress structure their questions, collect the appropriate data, and ultimately orient them toward the reforms they should consider based on their individual values and voting preferences. One thing is certain: comprehensive revision of copyright law will require clear, forward-thinking goals and a sustained commitment from Congress.
–Christine M. Carletta
* Full disclosure: Professor Gervais is JETLaw’s faculty advisor.
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