Copyright law is at a crossroads. In the wake of Oil States Energy Servs, LLC v Greene’s Energy Grp, LLC, the patent, copyright, and intellectual property regimes as a whole, are primed for a modern reconceptualization. At the heart of this reconceptualization is the distinction between public rights, those vindicated by public offices for the public good, and private rights, those vindicated by private citizens for their exclusive government-granted monopolies. Thanks to Oil States, patent rights now exist in two separate bundles – a public bundle including the patent grant itself and a private bundle consisting of a patent owner’s exclusivity rights.
Similar to patents, copyrights exist between a nuanced and delicate tug of war between creator incentive and public benefit. Necessarily, Congress continually legislates around potential market failures that threaten to thwart that delicate balance to keep both creators incentivized to create and the public able to access those creations. Reshaping the current copyright regime into two separate bundles would help Congress continue their market-correcting efforts. Just as with patents, a private bundle would include a copyright owner’s exclusivity rights. However, in addition to copyright grants, copyright’s public bundle of rights would also include conceptualizing copyrights as public rights under the Takings Clause of the Fifth Amendment. While seemingly chipping away at a copyright holder’s exclusive rights over their creative monopoly, conceptualizing copyrights as public rights under the Takings Clause ensures that copyright holders see guaranteed economic incentives to create while allowing the public to access those creations at the copyright holder’s discretion.
Pangle, Matthew, A Modern Reconceptualization of Copyrights as Public Rights (June 1, 2022). Vanderbilt Journal of Entertainment and Technology Law, volume 24, no 3, 2022.