Progressive Copyright Theory

Emily Behzadi Cárdenas

The legacy of colonialism, dispossession, and racial injustice is foundational to existing inequalities in modern copyright law. Traditionally, the primary purpose of copyright laws was to incentivize “progress” through the dissemination of new works, thereby conferring economic benefits to both the creator and society at large. Such economic-based notions of “progress” have historically favored the creative contributions of privileged groups while simultaneously disregarding those of historically oppressed groups. Progressive property theory acknowledges that there are social responsibilities and relationships inherent in private property ownership. Scholarship on progressive property law has exposed the need to reevaluate how property law regimes perpetuate existing inequities. This Article will examine how the application of progressive property theory may help address the doctrinal inequalities inherent in copyright law. This Article will specifically examine doctrines pertaining to copyrightability, such as authorship and originality, that have traditionally excluded protection of works created by historically marginalized groups. This Article proposes that the principles of progressive property theory can inform copyright reformation. By examining “progress” through the lens of progressive property theory, this Article advocates for social justice-oriented copyright law reforms.