The Expansion of Copyright Subject Matter and Scope Over Time

By TAP Staff

Posted on June 8, 2010


By Tara Wheatland, Copyright Research Fellow, Berkeley Center for Law & Technology at Berkeley Law School.

On April 9-10, 2010, The Berkeley Center for Law and Technology hosted a conference entitled Copyright @ 300: Looking Back at the Statute of Anne and Looking Forward to Challenges of the Future. This post presents a recap of one of many interesting and thought-provoking panels at the conference.

Read the entire conference summary:


Presenters on the Expansion of Copyright panel addressed the fundamental question: what qualifies as copyrightable subject matter, and what is the scope of an owner’s rights?  Professor Jessica Litman of the University of Michigan Law School explored in detail the emergence of performance rights in dramatic compositions.  She found the development of these rights to be heavily influenced by customary practices of the theater trade—including censorship and eventually unionization—and by the bold assertion (or, one might say, invention) of a prominent treatise author, Eaton Drone.  Professor Olufunmilayo Arewa, from Northwestern Law School, addressed the expansion of copyright subject matter to include music—including sound recordings and the underlying compositions—while highlighting the inexact fit of copyright law to a subject matter with long history of borrowing and improvisation. 

Professor Abraham Drassinower from the University of Toronto Law School made a case for giving more attention to the value created by the original work of authorship itself—not just the value of the exploitation of this work.  According to Professor Drassinower, the former is value that should accrue to society at large through enrichment of the public domain, and the latter to the copyright holder through the grant of exclusive rights.  In U.S. copyright law, this balance is achieved largely though the originality threshold for protection of works of authorship, but Professor Drassinower suggested that these values could also be apportioned more appropriately would be by limiting the scope of copyright protections to communicative acts.  Hank Barry, an attorney with Sidley Austin, LLP, discussed the impact of the ever-expansion of subject matter, particularly in digital formats, on intermediaries who have traditionally dealt in physical copies.

  • Panel mp3
  • Peter Chen, Latham & Watkins LLP (moderator)
  • Jessica Litman, University of Michigan Law School - pdf
  • Abraham Drassinower, University of Toronto Law School
  • Olufunmilayo Arewa, Northwestern Law School - pdf
  • Hank Barry, Sidley Austin LLP - pdf

This post is provided by Tara Wheatland, Copyright Research Fellow, Berkeley Center for Law & Technology at Berkeley Law School.