Copyrightable Subject Matter in the "Next Great Copyright Act"

Abstract

The drafters of the Next Great Copyright Act will have to establish the subject matter that their statute will protect. Currently, the 1976 Copyright Act protects a very broad range of subject matter, though its reach is not unlimited. Perfume, for example, falls outside all of the categories of subject matter protected in the current statute. The question of what subject matter copyright law protects has been largely, though not entirely, uncontroversial in recent years, and this Article does not propose that the Next Great Copyright Act expand or contract copyright’s subject matter. Instead, it draws on experience under the current act and its predecessor (the 1909 Copyright Act) to offer lessons to guide legislators in drafting a new statute’s subject-matter provisions. Most importantly, Congress should expressly and exhaustively enumerate in the statute all of the categories of subject matter that it intends to protect. Congress should not delegate authority to the courts or the Copyright Office to find other, unenumerated categories of subject matter copyrightable. In the past, Congress appears to have left open the possibility that subject matter not enumerated in the statute—such as, for example, perfume under the 1976 Act—might nevertheless be copyrightable, either by writing a statute (the 1909 Act) that could be read to protect every type of authorship that the Constitution authorizes Congress to protect or by indicating (in the 1976 Act) that the statutory list of categories of copyrightable subject matter is nonexhaustive. The Next Great Copyright Act should reject both approaches. In addition to identifying all of the categories of authorship that it wishes to protect, Congress should statutorily define each enumerated category, and should do so with sufficient breadth that rapid technological developments do not quickly make the definitions obsolete. The current statute, in contrast to the 1909 Act, demonstrates how this can be done. Finally, Congress should make clear that works of authorship incorporating preexisting material—in particular, compilations of preexisting material—are copyrightable only if they come within one of the expressly enumerated categories. © 2014 R. Anthony Reese. † Chancellor’s Professor of Law, University of California, Irvine. Thanks to the participants in the symposium, and to Jane Ginsburg, Rob Kasunic, Jessica Litman, Lydia Loren, Pam Samuelson, Chris Sprigman, and Molly Van Houweling for helpful discussions on the topic of copyright’s subject matter. Thanks also to Chris Buccafusco, Ed Lee, David Schwartz, the participants in the Spring 2013 Chicago IP Colloquium, and the participants in the January 2012 Vanderbilt JET Copyright & Creativity Symposium for comments on an earlier draft paper on this topic. 1490 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 29:1489 Following these principles in establishing the subject matter protected by the Next Great Copyright Act would improve upon the 1976 Act’s provisions and would resolve a number of uncertainties generated by the current statutory language.