Jessica Litman came to Pitt last week to deliver our annual “Distinguished Intellectual Property Lecture,” and she argued from the following premise: Not only are the stars are aligned such that comprehensive copyright reform may be possible — roughly equivalent to what we experienced during the 1960s and early 1970s — but that it is actually in the offing. (“Believe in it? I’ve seen it done!,” as the joke goes.) Given the long, long period of information gathering, negotiating, and reporting that led up to the ’76 Revision Act, the bulk of her talk described the principles that should guide the next 20 or so years worth of reform effort.
I’ve been pondering the premise. I don’t wonder whether copyright revision efforts will start to coalesce around a comprehensive reform effort (they may), but I do wonder whether copyright as such — even new and modernized and simplified copyright — is the right object of analysis. Diane Zimmerman published an essay recently (SSRN download here) that argued something similar to what I have in mind: That the digital environment teaches not so much that traditional copyright and digital (re)distribution are a poor match, but that copyright itself may be simply the wrong frame of reference. Even a new round of comprehensive reform is in the offing, what’s the starting point? Is there something today that is unambiguously, conceptually “copyright” law — and that is distinguishable conceptually from patent law (pace Bilski), from trademark law (pace Dastar), from “access” law (pace Randy Picker)?
I think we want to at least protect the ability to exploit unprotected copies of creative works for profit — I don’t think we want to push all protection on the use of access controls.
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