R. Anthony Reese, Copyrightable Subject Matter in the "Next Great Copyright Act", 29 Berkeley Tech. L. J. 1489 (2015).
This Article, part of a symposium on the current calls for a general revision of U.S. copyright law, addresses how a revised copyright statute should establish what subject matter copyright protects. The 1976 Copyright Act currently protects a very broad range of subject matter, though its reach is not unlimited.
This Article draws on experience under the 1909 and 1976 Copyright Acts to offer lessons for 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 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 identified in the statute — such as, for example, perfume — might nevertheless be copyrightable. This Article argues that a revised copyright act should reject that approach.
Congress should also statutorily define each enumerated category with sufficient breadth that rapid technological developments will not quickly make the definitions obsolete. Finally, Congress should make clear that compilations and derivative works are copyrightable only if they come within one of the statute’s expressly enumerated categories.
Following these principles in revising the copyright statute would improve upon the 1976 Act’s provisions and would resolve uncertainties generated by the current statute.