A New 17 U.S.C. § 108A: Restoring the Intellectual Property Clause's Balance in Copyright Consideration of Digital Disruption and the Prevalence of Onerous Licensing Practices

Authors

• Caroline L. Osborne, University of North Carolina at Chapel Hill School of LawFollow

Document Type

Article

Publication Date

2026

Publication

American University Intellectual Property Brief

Volume

17

Abbreviation

Am. U. Intell. Prop. Brief

First Page

1

Abstract

Accessibility of knowledge and control over information is key to an informed public and democracy. The founding fathers recognized the benefits of an informed citizenry, enshrining this concept in the Intellectual Property Clause of the Constitution. Such a clause created a delicate balance between creator and consumer, incentivizing creation for the benefit of society. The beauty of the Clause is the concept of balance. Balance resting delicately on the fulcrum with the dual requirements of reward for creation and benefit to society. The evolution of the means and formats in which information is delivered to the consumer in the creation of the digital item, the e-book, in combination with the current licensing practices of publishers, particularly in library lending, is a disruption of the carefully curated balance required of the Intellectual Property Clause. Restoration of such a balance is necessary both as dictated by the Intellectual Property Clause and to ensure access to information and an informed citizenry. This article argues for the creation of a new Section 108A that provides a compulsory license for digital versions of literary works and seeks to restore the required balance.