A Response to Professor Menell: A Remix Compulsory License Is Not Justified

Abstract

At the recent Columbia Law School Kernochan Center Symposium Creation Is Not Its Own Reward: Making Copyright Work for Authors and Performers, a diverse group of creators, academics, lobbyists and practicing attorneys presented their views on how copyright law succeeds or fails in providing the creators of copyrighted works with appropriate rights and protections in the ever-changing digital copyright ecosystem. Speakers disagreed not only on whether or not the copyright system was working in favor of or against the interests of creators, but also on fundamental copyright principles. This is not surprising; while most academics and practitioners seem to accept, to one extent or another, that creators are not treated well in the digital age, there is no consensus on the 200-year-old constitutional threshold question: should copyright be viewed as a property interest or an economic theory? If a property interest, then copyright might actually work better for authors and performers in the future. But if an economic theory, the chance for authors and performers to thrive and prosper in the digital era decreases dramatically. As part of this debate, Jay Rosenthal, one of the authors of this Article, proposed that the basic problem for creators in the digital age is that in the United States, the majority view regarding the fundamental philosophical basis of copyright is grounded in an economic theory-based approach rather than a property interest-