Copyright at the School of Patent

It is a remarkable fact that the doctrine of patent law generally coheres while the doctrine of copyright does not. Two features sharpen the contrast. First, the two laws perform the same function. People debate whether these regimes should strive for justice for creators or economic efficiency for consumers, but no partisan recommends one goal for patent and another for copyright. Indeed, the obvious but largely unasked question is why we have two different laws at all, rather than a single system of innovation policy. Second, lawmakers have fiddled with the two fields for an equally long time. The first Congress passed its first patent statute on April 10, 17901 and its first copyright statute less than eight weeks later.2 One would suppose that the same group working on essentially ,the same problems for the same time would have figured them out or fouled them up to the same degree. Yet today our law of patents basically makes sense, while the core of copyright law continues to be baffling. Part I of this Article supports the claim that three central elements of copyright doctrine lack justification and coherence. The first confounding element is the law of "idea" and "expression," with its related doctrine of "merger." Although this law sets forth the central limit on the extent of copyright protection, it is cast in conclusory terms that fail to give judges, lawyers, and authors a way to determine its *scope. The second conundrum is copyright's test for determining when one work infringes another and, in particular, the appropriate role for expert versus lay opinion. Here the problem is not that the law presents a single agreed-upon standard that is intellectually bankrupt. Rather, the law presents a blizzard