Five Reforms for Copyright

Abstract

US copyright law deserves credit for encouraging an outpouring of original expressive works, bequeathing us a rich cultural heritage. But the copyright regime has grown too big and too powerful. We need to pursue a new direction in copyright reform: toward freedom. We can best improve copyright by limiting its power, repairing its foundations, and opening up ways to escape it entirely. Specifically, we should strive to (1) reinstate the Founders’ Copyright Act, (2) withdraw the US from the Berne Convention, (3) develop misuse doctrine into an escape from copyright, (4) focus copyright policy on consumers’ costs, not producers’ profits, and (5) reconceive “IP” as “Intellectual Privilege.” Property is neither an accurate label for copyright nor one we have to embrace by default. We can more accurately label copyright a privilege—a statutory exception to common-law rights and obligations that vests its holder with special powers and immunities. Copyright’s statutory privileges come only at hazard to our natural and common-law rights. To preserve our freedoms, therefore, we must reform copyright.