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I know this isn't politically feasible, but is it legally possible for the United States to abolish copyright? Could the government withdraw from all treaties that require copyright, then repeal all copyright-related laws?

I know the Constitution allows copyright, but does it require it to be recognized?

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    Withdrawal from treaties might not be recognized in some cases. The United Nations at least does not recognize withdrawal: en.wikipedia.org/wiki/Withdrawal_from_the_United_Nations , and the Universal Declaration of Human Rights has such a clause suggestive of copyright as a right: "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author." (Article 27.2) Jun 13 at 2:14
  • @BrettZamir How would that clause be enforced against the US if Congress did abolish copyright?
    – Someone
    Jun 13 at 5:28
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    The US would become a pariah and probably subject to international sanctions, other countries refusing to do business with them. I know I wouldn't want to have any of my products delivered to a country where there are no protections against those products being copied and sold in competition to me (but almost certainly at a lower price).
    – jwenting
    Jun 13 at 9:06
  • I don't think it could as the treaty doesn't have strong jurisdiction or enforcement mechanisms (e.g., the ICJ can't generally take a case unless both parties agree, the U.S. has veto power, etc.). A treaty with a similar right from the U.N., the International Covenant on Economic, Social and Cultural Rights, does have an optional protocol which would allow enforcement, but the U.S. has not ratified the treaty (only signed it). You might look into en.wikipedia.org/wiki/International_copyright_treaties though to see the status of these treaties more specific to copyright. Jun 13 at 9:15
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    @jwenting In this scenario, consumers prefer buying from your competition, hurting your profitability and causing you to pull out of the market? That's not called a sanction, that's called going out of business. Jun 13 at 12:17

2 Answers 2

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There is no constitutional requirement that Congress provide copyright protection in the US. Congress could, if it so chooses, repeal Title 17 of the US Code, and afford no copyright protection whatsoever. Given that the US has protected copyright from its earliest days, that copyright protection in English law dates to the 1600s, that almost every nation currently has a Law protecting copyright, and that such protection is a requirement of membership in the World Trade organization (WTO) I find it highly unlikely that such a change in the law will be made in the foreseeable future. But Congress does have the power to abolish copyright in the US.

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – Dale M
    Jun 13 at 23:42
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Congress has the power to abolish all copyright laws and to abrogate any treaties that compel it to recognize copyright laws.

But, under the 5th Amendment to the United States Constitution, private property may not be taken by the government without just compensation (subject to exceptions not applicable in this fact pattern). So, the U.S. government would have to buy out the fair market value of all copyrights currently in force in order for it to do so, and it would have to do so in a manner that affords copyright owners reasonable due process in connection with the making of that determination.

In the alternative, the U.S. could, for example, eliminate copyright protections prospectively to newly created works, while allowing existing copyrights to remain in force.

Also, while the U.S. would have to at least allow copyright holders to obtain compensatory damages for breaches of copyright, it could probably also immediately extinguish all rights under copyright to statutory damages, attorney fees, criminal sanctions for copyright infringement, injunctive relief, and punitive damages for copyright infringement. It could also probably impose reasonable procedural requirements requiring claims of grandfathered copyrights to be documented or registered within a reasonable period of time.

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    According to this Harvard Law Review article a drastic reform or even abolition of Copyright is probably not a taking if a "grace period" of perhaps 10 years is given before existing copyrights are abolished. Obviously this is speculation, there is no case law because Congress hasn't done that and almost surely won't. But the article is interesting and IMO well-reasoned. It eas mentioens in a commetn on my answer, now moved to chat. Jun 14 at 15:00
  • What if instead of repealing copyright altogether, they recognized it in name only but either prohibited infringement lawsuits altogether or did something to make bringing an infringement suit virtually impossible (e.g. the copyright holder must prove beyond all possible doubt that nobody had ever created the same work before)? (If you write a 300 page novel, it's extremely unlikely that someone else previously wrote exactly the same novel, but it is theoretically possible.)
    – Someone
    Jun 16 at 6:48
  • @Someone At some point a court is going to call that a taking of private property. I've guessed at where that point is, but ultimately a court would have to evaluate a particular change in the law and evidence and argument from the parties regarding the economic effect of that change in the law.
    – ohwilleke
    Jun 16 at 16:41

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