No way in: The public domain, personal interest and the evolution of copyright

John Stewart Breyer

Abstract

The root of American copyright law can be found in Article 1, section 8, paragraph 8, of the Constitution. The concept is simple. The law exists "To promote the Progress of Science and useful Arts." The law that has evolved from this simple concept is complex and contentious. After more than two and one quarter centuries of evolution, it continues to expand. This research reviews the history of copyright and reflects upon the conflict among the elements that have shaped American copyright law. The dissertation draws upon legal cases that have ultimately determined how the law has been interpreted and distinguishes between two primary factions, the creators and the public. The author contends that there are four primary arguments that are mounted to persuade courts, lawmakers, and the public that the original tenets of copyright are no longer functional. The arguments of tangibility, originality, technology, and property are reviewed in detail. The research reveals how employment of these arguments has effectively distracted legislators and the public from the original purpose of American copyright. The result of these distractions is revealed in this research.