Regulatory Copyright

Abstract

This article explores and examines the implications of the increasingly regulatory nature of U.S. copyright law. For many years, U.S. copyright law operated under a judicially-administered, industry-neutral property rights regime. Congress set the scope of the property entitlement, leaving the courts to enforce the entitlement and the markets to organize the production of creative works in light of the entitlement structure. In recent years, however, Congress has shown an increasing willingness to intervene more directly in the structure of copyright markets. Congress's most recent legislative efforts are far more complex and industry-specific, allocate rights and responsibilities in a far more detailed manner, and in some cases directly regulate technology and prices in the market. This Article examines and critically evaluates this trend. It first makes the descriptive claim that this kind of "regulatory copyright" has become increasingly the preferred, and indeed perhaps dominant, mode of copyright lawmaking. It then critically assesses both the strengths and weaknesses of this approach in the copyright law context, applying insights from the broader literature. Finally, it offers suggestions for both being more selective in deploying this mode of copyright lawmaking and improving the function of such lawmaking in cases where it is deployed.