Academic journal article Marquette Intellectual Property Law Review

The Twelfth Annual Honorable Helen Wilson Nies Memorial Lecture in Intellectual Property Law: The Copyright Revision Act of 2026

Academic journal article Marquette Intellectual Property Law Review

The Twelfth Annual Honorable Helen Wilson Nies Memorial Lecture in Intellectual Property Law: The Copyright Revision Act of 2026

Article excerpt

As someone who teaches and writes about copyright law, I end up straddling two different worlds. On the one hand, I really do need to understand and be able to teach the details of the copyright statute and the case law construing it. My students need to know the difference between a public performance right under Section 106(4) and a public performance right by digital audio transmission under Section 106(6); they need to know the difference between the statutory licenses available under Section 114 and the statutory licenses available under Section 115. (1) So, I need to have all of those details pretty well nailed down. At the same time, as an academic who writes normative and historical articles and books about copyright, and who tries to explain to her students why the statute works, or fails to work, the way it does, I need to be pretty well grounded in copyright theory and in the normative premises that are supposed to underlie the law.

The disconnect between those two realms is serious, and growing.

And, as a result, practicing copyright lawyers are finding much copyright scholarship less useful than they used to, and many copyright scholars are finding members of the copyright bar less thoughtful than they used to. This is a field in which conferences for CLE credit are common, and the conferences commonly include both speakers who are law professors and speakers who are practicing copyright lawyers, so one gets to actually see folks snipe at each other. When I read or listen to what august members of the copyright bar have to say about the work of copyright law professors, I read or hear grotesque caricatures of ideas no actual law professor I've ever met has read or said. I assume that many copyright lawyers feel something similar.

That's a pity, because I believe that we're about to embark on the beginning phases of another round of wholesale copyright revision. That's exactly the sort of situation in which the groups might have a fair amount to offer one another.

Why do I think that we are now in the initial stages of an effort to overhaul the copyright statute? There are moves that copyright lawyers make when the law isn't working well for them. They avoid inconvenient statutory language by persuading courts that the words of the statute mean one thing in one context and a different thing in another context. Under the 1909 Act, for example, the courts developed alternate definitions of the term "publication" for different purposes. (2) Copyright lawyers sit down with other copyright lawyers and negotiate a series of band-aid solutions in which they agree to behave with one another as if the statute on the books said what they wished it said. Under the 1909 Act, for example, music publishers and record labels devised "Harry Fox" licenses to track the compulsory mechanical license where they liked it and to vary its terms where they found the statute inconvenient. (3) Although copyrights under the 1909 Act were formally indivisible, publishers devised a series of customary practices to allow them to behave as if different copyright rights could be separately owned. (4)

In the ramp-up to actual copyright revision, copyright lawyers will meet in small groups to see if they can generate agreement on what the law ought to look like. They will ask their pet legislators to float trial balloons. They will use the tools that good lawyers have in their toolboxes to try to position themselves to claim that whatever copyright reform they seek is already well-established under current law. (5)

We've been seeing a lot of that kind of thing recently. In the multiple meanings department, we have fixation. Copyright lawyers suggest that "fixed in tangible form" (6) means one thing for the purposes of investing copyright and a different thing in connection with infringement. (7) In the band-aid solutions department, we have notice and takedown: Lots of industry actors have informally agreed with each other to behave as if the notice and takedown provisions in Section 512 of the copyright statute (8) applied to a more expansive group of activities than the statute seems to contemplate. …

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