2014 Symposium: Copyrightable Subject Matter in the Next Great Copyright Act
This is a summary of Professor Reese’s topic of discussion and forthcoming article:
Drafting the Next Great Copyright Act will require defining the scope of subject matter protected by the Act. This key aspect of framing a revised copyright statute determines what can and cannot be protected by copyright and represents Congress’s judgment about which creations of authors need copyright’s protection and which should remain free from claims of ownership that would restrict copying. This Article proposes four principles to guide the drafters of the Next Great Copyright Act in framing the act’s subject matter provisions. First, Congress should expressly enumerate all of the categories of works that are protected by the statute, and should not draft the statute to allow Courts or the Copyright Office to recognize copyright in additional, unenumerated categories. Second, Congress should decide which categories of work to actually protect, and should not simply grant protection to everything that constitutes the “Writing” of an “Author” under the Constitution’s Copyright Clause. Third, Congress should define each of the categories of copyrightable works to which it grants statutory protection. And fourth, Congress should grant copyright protection to a compilation or a derivative work only if that compilation or derivative work falls within one of the expressly enumerated categories of protectable works.