Copyright and a democratic civil society.

Author:Netanel, Neil Weinstock


  1. The Expansion of Copyright Holder Rights 292

    1. Troublesome Areas of Copyright Expansion 297

      1. Duration 298

      2. Personal Uses 299

      3. Transformative Uses 301

    2. Further Expansion by Contract 305

  2. The Neoclassicist Approach to Copyright 306

    1. Two Approaches to Copyright Economics

    2. The Neoclassicist Approach

      1. Neoclassicist Property Theory and Its Application to

        Copyright 314

        1. Universality 314

        2. Concentrated Ownership 317

        3. Exclusivity 319

        4. Transferability 321

      2. The Marginality of Law 321

    3. The Neoclassical Market Paradigm Versus Copyright's

      Democracy-Enhancing Goals 324

  3. The Minimalist Critics of Copyright Expansion 336

  4. The Democratic Paradigm 341

    1. Democratic Governance and Civil Society 341

    2. Civil Society, the State, and the Market 344

    3. Copyright and a Democratic Civil Society 347

    1. Copyrights Production Function 347

    2. Copyright's Structural Function 352

      1. An independent Expressive Sector 352

      2. Imposition of Limits 362

    3. Summary 363

  5. Doctrinal Outcomes in the Digital Public Square 364

    1. Copyright's Duration 366

    2. Personal Uses 371

    3. Transformative Uses 376

    4. Displacement of Copyright by Contract 382

  6. Conclusion 386

    Copyright law strikes a precarious balance. To encourage authors to create and disseminate original expression, it accords them a bundle of proprietary rights in their works. But to promote public education and creative exchange, it invites audiences and subsequent authors to use existing works in every conceivable manner that falls outside the province of the copyright owner's exclusive rights. Copyright law's perennial dilemma is to determine where exclusive rights should end and unrestrained public access should begin. If copyright is cast too narrowly, authors may have inadequate incentives to produce and disseminate creative works or may be unduly dependent on the support of state or elite patrons. If copyright extends too broadly, copyright owners will be able to exert censorial control over critical uses of existing works or may extract monopoly rents for access, thereby chilling discourse and cultural development.

    Digital technology threatens to upend copyright's already uneasy accommodation of public access with private ownership. Once a creative work is freely available online, anyone can, with a few clicks of a mouse, make perfect digital copies and limitless digital variations, and can electronically distribute them to the ends of the earth. If unauthorized and widespread, such user activity could radically undermine traditional copyright markets. At the same time, however, digital technology provides copyright owners with the technical means to restrict access to, and uses of, digitized works to a far greater extent than is possible in the analog and hard copy world. The systematic deployment of such technological fences would raise the specter of all-consuming copyright owner control.

    Fueled by digital technology's destabilizing potential, an extraordinarily bitter battle is raging in Congress,(1) the courts,(2) law reviews,(3) Internet discussion groups,(4) and numerous international for a, over the purpose and scope of copyright as we enter the digital age. On one side are U.S. business leaders, government officials, and others who have called for expanded copyright protection to support commercial development of the much-heralded National and Global Information Infrastructures.(6) These proponents of an expansive copyright have drawn heavily upon emerging scholarship that applies an amalgam of neoclassical and new institutional economic property theory to copyright. This "neoclassicist" approach posits that, far from simply inducing the creation and dissemination of new expression, copyright serves as a vehicle for directing investment in existing works., Neociassicists would accordingly treat literary and artistic works as "vendible commodities," best made subject to broad proprietary rights that extend to every conceivable valued use.(8) In this manner, neoclassicists contend, market pricing can direct resource allocation for the marketing and development of existing creative expression in an optimally efficient manner.

    On the other side, numerous critics have expressed serious misgivings over the political, cultural, and economic ramifications of expanded protection.(9) In so doing, many such critics have espoused, in one form or another, what might be termed a minimalist position. In resisting further copyright expansion, they have proffered various approaches that would severely reduce existing levels of copyright protection. Some minimalist critics follow the same criterion of allocative efficiency as the neoclassicists, but reach diametrically opposed conclusions. They insist that the production of original expression is not inherently more valuable than any other potential use of society's resources, and thus that copyright protection must be set at a level that accounts not just for public access to expression, but also for the social cost of drawing resources away from other potential uses.(10) Other critics phrase copyright's incentive rationale in minimalist terms. They recognize that authors, expression may have unique social value, but question whether the copyright incentive is truly necessary to induce its production and dissemination at an optimum amount and cost.(11) Some minimalists tout the notion that copyright is an outdated impediment to "truth and exploration" in the digital universe.(12) They argue that whatever copyright's value in the hard copy world, it simply has no place on the Internet.(13) Others eschew such utopianism, but insist nevertheless that longstanding, predigital limitations to copyright owner prerogatives must be maintained even as digital network technologies radically alter traditional copyright markets. Although these critics generally purport to seek the retention of existing levels of protection, their proposed adherence to predigital "free use zones" would significantly undermine copyright's support for the autonomous creation and dissemination of expression in the digital environment.(14)

    This Article presents a conceptual framework for copyright that stands in opposition to both the expansionism of neoclassicist economics and the minimalism of many critics. That framework, which I will label the democratic paradigm, emphasizes that copyright is in essence a state measure that uses market institutions to enhance the democratic character of civil society. In supporting a market for authors, works, copyright serves two democracy-enhancing functions. The first is a production function. Copyright provides an incentive for creative expression on a wide array of political, social, and aesthetic issues, thus bolstering the discursive foundations for democratic culture and civic association. The second function is structural. Copyright supports a sector of creative and communicative activity that is relatively free from reliance on state subsidy, elite patronage, and cultural hierarchy. The democratic paradigm requires that copyright protection be sufficiently strong to ensure support for copyright's production and structural functions. But at the same time, it would accord authors a limited proprietary entitlement, designed to make room for - and, indeed, to encourage - many transformative and educative uses of existing works.

    In contrast to the neoclassicist approach, the democratic paradigm emphasizes that copyright, like many institutions of civil society, is in, but not entirely of, the market. As I will argue, neoclassicism cannot serve as the basis for copyright doctrine because copyright's primary goal is not allocative efficiency, but the support of a democratic culture. Moreover, despite the Sisyphean efforts of some copyright scholars to confine neoclassicism within a democracy-enhancing framework, a copyright law driven by neoclassical economic property theory would give copyright owners such far-reaching control over productive uses of existing creative works that it would unduly constrain the robust debate upon which democratic self-rule depends.

    At the same time, I will argue that much of the counteroffensive against copyright's precipitous expansion is misconceived. By adhering to a minimalist position, many critics have failed to account for the need to maintain autonomous, self-reliant authorship, especially in the face of rapidly changing markets. I will emphasize in contrast that sustained works of authorship"(15) - books, articles, films, songs, and paintings - form a central part of democratic discourse, and that a robust copyright is a necessary (though not necessarily sufficient) condition both for the creation and dissemination of that expression and for its independent and pluralist character.

    The idea that copyright is in some way bound up with democratic governance is not new. In adopting the Constitution's Copyright Clause(16) and enacting the first federal copyright statute, the Framers were animated by the belief that copyright's support for the diffusion of knowledge is "essential to the preservation of a free Constitution."(17) Modern copyright jurisprudence contains a similar theme. It posits that the public education and discourse that undergird a democratic polity require a robust market for original works of authorship.(18) As the Supreme Court affirmed a decade ago: "[T]he Framers intended copyright itself to be the engine of free expression."(19)

    But the absence of a more rigorous, systematic understanding of how copyright supports democratic institutions has left this democratic theme vulnerable to both sides of the current debate over copyright's future. It has enabled neoclassicists to recast copyright as a mechanism for allocative efficiency, importing a theory of property that fails adequately to account for our fundamental, nonmonetizable interests in expressive diversity and informed citizenship.(20) And it has left the critics without a...

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