The Copyright Revision Act of 2026.

• Author: Litman, Jessica
• Position: Twelfth Annual Honorable Helen Wilson Nies Memorial Lecture in Intellectual Property Law

As someone who teaches and writes about copyright law, I end up straddling two different worlds. On the one hand, I really do need to understand and be able to teach the details of the copyright statute and the case law construing it. My students need to know the difference between a public performance right under Section 106(4) and a public performance right by digital audio transmission under Section 106(6); they need to know the difference between the statutory licenses available under Section 114 and the statutory licenses available under Section 115. (1) So, I need to have all of those details pretty well nailed down. At the same time, as an academic who writes normative and historical articles and books about copyright, and who tries to explain to her students why the statute works, or fails to work, the way it does, I need to be pretty well grounded in copyright theory and in the normative premises that are supposed to underlie the law.

The disconnect between those two realms is serious, and growing.

And, as a result, practicing copyright lawyers are finding much copyright scholarship less useful than they used to, and many copyright scholars are finding members of the copyright bar less thoughtful than they used to. This is a field in which conferences for CLE credit are common, and the conferences commonly include both speakers who are law professors and speakers who are practicing copyright lawyers, so one gets to actually see folks snipe at each other. When I read or listen to what august members of the copyright bar have to say about the work of copyright law professors, I read or hear grotesque caricatures of ideas no actual law professor I've ever met has read or said. I assume that many copyright lawyers feel something similar.

That's a pity, because I believe that we're about to embark on the beginning phases of another round of wholesale copyright revision. That's exactly the sort of situation in which the groups might have a fair amount to offer one another.

Why do I think that we are now in the initial stages of an effort to overhaul the copyright statute? There are moves that copyright lawyers make when the law isn't working well for them. They avoid inconvenient statutory language by persuading courts that the words of the statute mean one thing in one context and a different thing in another context. Under the 1909 Act, for example, the courts developed alternate definitions of the term "publication" for different purposes. (2) Copyright lawyers sit down with other copyright lawyers and negotiate a series of band-aid solutions in which they agree to behave with one another as if the statute on the books said what they wished it said. Under the 1909 Act, for example, music publishers and record labels devised "Harry Fox" licenses to track the compulsory mechanical license where they liked it and to vary its terms where they found the statute inconvenient. (3) Although copyrights under the 1909 Act were formally indivisible, publishers devised a series of customary practices to allow them to behave as if different copyright rights could be separately owned. (4)

In the ramp-up to actual copyright revision, copyright lawyers will meet in small groups to see if they can generate agreement on what the law ought to look like. They will ask their pet legislators to float trial balloons. They will use the tools that good lawyers have in their toolboxes to try to position themselves to claim that whatever copyright reform they seek is already well-established under current law. (5)

We've been seeing a lot of that kind of thing recently. In the multiple meanings department, we have fixation. Copyright lawyers suggest that "fixed in tangible form" (6) means one thing for the purposes of investing copyright and a different thing in connection with infringement. (7) In the band-aid solutions department, we have notice and takedown: Lots of industry actors have informally agreed with each other to behave as if the notice and takedown provisions in Section 512 of the copyright statute (8) applied to a more expansive group of activities than the statute seems to contemplate. In the jockeying for position department, we have a series of efforts to claim that the exclusive right under 106(3) of the statute to "distribute copies to the public by sale or other transfer of ownership, or by rental, lease, or lending" covers a very wide swathe of acts, some of which include no distribution, copies, sale, transfer of ownership, rental, lease, or lending. (9) What happens next, if this era is like past ones, is a long, protracted process of negotiation to come up with what will be called something like The Copyright Revision Act of 2026 (to be fondly known as the '26 Act for short).

The reason for all of this maneuvering is that the current copyright statute isn't working the way anyone would like it to. We all want the copyright system to nurture the creation, dissemination, and enjoyment of works of authorship. That's what copyright is for. When it works well, it should encourage creators to make new works, assist intermediaries in disseminating them widely, and support readers, listeners, and viewers in enjoying them. If the copyright system poses difficult entry barriers to creators, if it imposes complicated obstacles on intermediaries, if it inflicts burdensome conditions and gratuitous hurdles on readers, listeners, and viewers, then it is not going to work very well. The current copyright law is flawed in all three respects.

Let's start with authors: Encouraging authors to create is supposed to be copyright's central mechanism. In the real copyright system, though, writers, artists, musicians, and filmmakers face daunting obstacles in searching for opportunities to write, paint, play, or film anything the public will see. Every year, the news coverage of the South by Southwest music festival in Austin, Texas, marvels at all of the musicians who converge on the conference, some of them subsidized by governments in their home countries, in the hope of playing music that someone will actually hear (10) (despite the fact that listeners complain that the music they hear on any given commercial radio station is the same as the music they hear on any other commercial radio station). Independent filmmakers finance their films on credit card debt and family loans and submit them to multiple film festivals without ever finding a distributor (despite the fact that this week the movie Friday the 13th is playing on six different screens where I live). Apprenticeships and entry-level jobs in the recording, film, photography, or theater business are so rare that they make tantalizing grand prizes for television reality shows. There are about a zillion different how-to books and a fair number of monthly magazines on how to get your book published.

Even when creators succeed in publishing a book, cutting an album, placing an article, or selling a screenplay, moreover, they typically earn only a small share of the proceeds of the copyright in their work. A tiny minority get rich from copyright royalties. A somewhat larger number are able to make a living from creating works of authorship. The majority of creators, though, need day jobs to supplement their income. I'd guess that's why some of you decided to go to law school.

Why is that? It's not that nobody values works of authorship enough to spend money for them. Studies of the size of the core copyright industries in the U.S. economy indicate that they generate nearly a trillion dollars. (11) The reason is that very few of those dollars end up in creators' pockets. The copyright statute incorporates a bias in...