The Copyright Act of 1976 is nearing its fourth decade of existence. By historical standards, that longevity puts the 1976 Act “on the clock” for a major revision in the near future. Indeed, given the incredible advances in digital technologies and the Internet—all of which were unforeseen by Congress back in 1976—the need for a major revision and modernization of copyright law may already be upon us.
This time around, however, Congress faces a challenge it has never faced before. In none of the five previous copyright acts did Congress have international treaty obligations effectively limiting the alternatives available for reform. The Berne Convention and the TRIPS Agreement—which the United States joined in 1989 and 2004, respectively—set forth numerous minimum standards of copyright law and restrict the scope of permissible copyright exceptions. Although these agreements do allow some flexibility for countries to shape their own copyright laws in some respects, in other areas the requirements are more fixed. A number of basic features of copyright law—a set of required exclusive rights including rights for derivative works, a ban on formalities for foreign works, and a term that lasts at least the life of the author plus fifty years—are now all set in Berne stone. TRIPS adds to the calcification of copyright by imposing additional requirements on countries.
Of course, one way of dealing with the international copyright treaties would be to modernize them as well. Indeed, some of the provisions of the Berne Convention, which date back to the early 1900s, if not earlier, may need modernizing more than the U.S. Copyright Act. Amending international copyright treaties, however, requires agreement by a consensus or the unanimity of member countries. Getting consensus among World Trade Organization (“WTO”) countries about a major copyright revision— such as abandoning some of the outdated Berne features—would be difficult, to say the least. No doubt it would be more difficult than getting a simple majority of Congress to enact a revision of U.S. copyright law.
Thus, at least in the short-term, Congress may be better off exploring options for reforming copyright law within the current TRIPS/Berne framework, while working in the long-term with the Executive Branch and U.S. Trade Representative to modernize international IP agreements. That way, the United States can begin to modernize its copyright law instead of waiting for consensus among WTO and Berne countries on copyright reform. The downside, however, is that many U.S. reform proposals may face the same stumbling block: the Berne Convention and TRIPS Agreement may restrict, if not preclude, many copyright reforms in domestic law. “Can’t do it because it’s a Berne violation” has become an all too-common refrain to torpedo numerous ideas for improving or modernizing our copyright system. Because of these international requirements, the ability of WTO countries to enact new, innovative approaches to copyright law is circumscribed.
To deal with this problem, this Article offers a new alternative for copyright reform: tax law. I call this approach the “tax fix” for copyright law, in that tax law is used to fix problems or inefficiencies in our copyright system. Using the tax system as a way to modernize our copyright system offers several advantages. Most important, tax law can fix problems in our copyright system without violating the Berne Convention or TRIPS Agreement, and without requiring amendment to either treaty. Tax law can also be used to incentivize the copyright industries to adopt new, innovative approaches to copyright in ways that voluntary reforms like Creative Commons cannot. The tax fix has the added benefit of offering, beyond the “one size fits all” approach, greater tailoring of copyrights by both industries and individuals—which may, in turn, lead to greater efficiency.
