Copyright reform step zero

Abstract:

'A reasonable person might well think it's a fool's errand to contemplate a [copyright] reform project of any sort.' The US Copyright Act of 1976 and its subsequent amendments is contained in over 200 pages of incomprehensible, sometimes inconsistent, and highly technical provisions. Attempts to reform this law are doomed from the start. They are doomed not because they lack merit, but because of the way copyright law is made. This article argues that before any meaningful copyright reform is passed, the institutional framework that makes copyright law must be changed. It proposes delegating substantive rulemaking authority to the US Copyright Office as part of that change. The article explores the benefits and drawbacks to this approach and concludes that without the type of institutional reform envisioned by this proposal, copyright law will continue to become increasingly unable to keep up with technological and other challenges while also becoming increasingly resistant to reform efforts.