The Antibootlegging Legislation Monopoly: A New Scheme for Live Musical Works Finds its Home in the Commerce Clause

Abstract

This Thesis analyzes the federal antibootlegging legislation, 17 U.S.C. § 1101 and 18 U.S.C. § 2319A, within the context of the traditional contours of copyright law and as part of the U.S. copyright system operating within the larger intellectual property scheme and constitutional framework. Courts reviewing the legislation have upheld its protection of unfixed musical expression under the authority of the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, rather than the under the Copyright Clause, U.S. Const. art. I, § 8, cl. 8. This Thesis finds that Congressional enactment of an additional monopoly for unfixed musical expression, outside of those already existing under the Copyright Clause for fixed musical works and sound recordings, creates a mutant species of copyright protection for musical works. The failure to recognize unfixed live musical performance as an essential part of the public domain under the existing statutory and constitutional framework, unprotectible until brought into the copyright system through fixation, is the analytical defect which allows the protection as set forth in the legislation to thwart the copyright system's statutory safeguards and constitutional protections. The historical underpinnings of copyright are used to show that unfixed musical expression, which becomes a copyrightable work upon fixation, is of the same character, only a different form, as the fixed expression. Based on the unique characteristics of musical expression, including existing copyright protection of a sound recording, the fixed expression, the legislation creates a layered monopoly, demanding nothing in exchange for the unfixed protection. The Thesis concludes that the legislation's goal of serving the interests of performers, as well compliance under TRIPS, could still be accomplished with an amendment to the Copyright Act's definition of fixation to include protection of simultaneous fixation of a live musical performance. With this amendment, performers would come under the protection of the Copyright Act, which requires in exchange for the monopoly a return of the fixed version of the work into the public domain once traditional copyright protection expires, serving the ultimate goals of the Copyright Clause without subverting our constitutional framework designed to further the progress of the science and the useful arts.