Reclaiming Copyright

69 Pages Posted: 11 Nov 2008

Date Written: November 1, 2008


Constitutional adjudication has proved inadequate to combat the special-interest influence over the Copyright Act, as the Supreme Court's decision in Eldred v. Ashcroft illustrates. The Eldred Court considered a constitutional challenge to the Copyright Term Extension Act (CTEA), a notorious example of rent-seeking in copyright law. For reasons reflecting concerns over separation of powers and institutional competency, the Court upheld the CTEA without any mention of the influence special interests had over its enactment.

In this article, I argue that statutory interpretation is superior to constitutional adjudication for combating the influence of special interests over the Copyright Act. Building on public choice insights into statutory construction, I offer a framework for resolving statutory ambiguities in a way that reclaims copyright for the public interest. I argue that courts should resolve statutory ambiguities in the Copyright Act by construing private-regarding provisions narrowly and public-regarding provisions broadly. Finally, I apply this rule to resolve important copyright issues including the tension between the derivative works right and the fair use doctrine, as well as the conflict between the DMCA and both the fair use doctrine and the idea/expression dichotomy.

Keywords: Copyright, Statutory interpretation, Public Choice, First Amendment, Eldred, Copyright Term Extension Act, CTEA

JEL Classification: D70, D78

Suggested Citation

Bohannan, Christina, Reclaiming Copyright (November 1, 2008). U Iowa Legal Studies Research Paper No. 08-48; Cardozo Arts & Entertainment Law Journal, Vol. 23, p. 567, 2006. Available at SSRN:

Christina Bohannan (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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