Goodbye to All That--A Reluctant (and Perhaps Premature) Adieu to a Constitutionally-Grounded Discourse of Public Interest in Copyright Law

In this Article, Professor Jaszi suggests that there is a need to develop new, policy-grounded arguments against expansionist legislative and judicial tendencies in copyright that diminish the traditional public domain. In recent years, he contends, a new understanding of the purposes of a copyright system has emerged, which has changed the U.S. copyright discourse in support of increased proprietary rights. According to Professor Jaszi, the objective of this new understanding is to improve the competitive position of companies that have significant investments in Inventories of copyrighted works. Recognizing the Uruguay Round Amendments Act (URAA) as an episode in this new process of copyright revision, Professor Jaszi uses a framework of constitutional analysis to review some of the various justifications posited for the most controversial URAA features--the copyright restoration for works of Berne Convention and World Trade Organization origin and anti-bootlegging provisions. Considering the newly emerging understanding of the essential terms of the Patent and Copyright Clause of the U.S. Constitution, it is possible, he argues, to justify, based on constitutionally-grounded reasoning, the URAA provisions and other innovations in copyright, including copyright justification for works of domestic U.S. origin. Professor Jaszi concludes that it is incumbent upon those who value the public domain to develop new ways of explaining how and why the maintenance of an intellectual commons matter