Copyright and inequality.

• Author: Shaver, Lea
• Position: Introduction through II. The Inequality Insight, p. 117-154

ABSTRACT

The standard theory of copyright law imagines a marketplace efficiently serving up new works to an undifferentiated world of consumers. Yet the reality is that all consumers are not equal. Class and culture combine to explain who wins, and who loses, from copyright protection. Along the dimension of class, the inequality insight reminds us just because new works are created does not mean that most people can afford them, and calls for new attention to problems of affordability. Copyright protection inflates the price of books, with implications for distributive justice, democratic culture, and economic efficiency. Along the dimension of culture, the inequality insight points out that it is not enough for copyright theory to speak generally of new works; it matters crucially what languages those works are being created in. Copyright protection is likely to be an ineffective incentive system for the production of works in "neglected languages" spoken predominantly by poor people. This Article highlights and explores these relationships between copyright and social inequality, offering a new perspective on what is at stake in debates over copyright reform.

TABLE OF CONTENTS INTRODUCTION I. A CASE STUDY IN BOOK HUNGER A. The Language Barrier B. The Cost Barrier C. General Lessons II. THE INEQUALITY INSIGHT A. Copyright and Class B. Copyright and Culture C. More Books for Whom? III. RECOMMENDATIONS A. Rethinking Copyright Law B. Looking Beyond Copyright Law C. Creativity Without Copyright D. Syncretic Approaches to Copyright CONCLUSION INTRODUCTION

"Half the world suffers from hunger. The other half wants to lose weight." So read a slogan I once came across, chalked on a campus sidewalk. The irony was aimed at the global food crisis, but the same paradox holds true for another precious resource: reading material. As a reader of this Article, you are almost certainly among the half that is drowning in text--e-mail, news, scholarly articles--not to mention that stack of books you earnestly mean to read, as soon as you can find the time. As this Article goes to print, Amazon.com offers approximately one million books for instant purchase and wireless delivery. Google has indexed forty-five billion web pages. As Jack Balkin notes, "Before the Internet, free speech theorists worried about the scarcity of bandwidth for broadcast media.... The digital revolution made a different kind of scarcity salient.... scarcity of audience attention." (1) As readers in a world of abundance, you and I struggle to cope with excess, to manage our textual diets within the constraints of limited time.

Yet the reality is very different in most parts of the world, where reading material remains scarce in the traditional sense. For decades, policymakers and scholars have spoken of Africa's "book famine." (2) The phrase appears to have originated in the 1980s when economic crises across the African continent sparked critical shortages of both food and books. (3) The problem of book scarcity, however, is not limited to that continent, nor to that decade. In many developing countries, it remains difficult to locate a bookstore. (4) Where books are physically available for purchase, they are often exorbitantly expensive. (5) Academics and university students in developing countries experience great difficulty meeting their book needs. (6) For ordinary people in these countries, the situation is even more acute. They simply cannot afford to purchase books for private consumption and generally lack access to even a minimally functional public library.

Although much less extreme, book hunger is also a problem in the United States. Educational research suggests that a powerful predictor of academic performance is the number of books a child has access to in his or her own home. (7) Yet 44% of American children grow up in families that have trouble paying for basic needs. (8) Socioeconomic status correlates with vast disparities in the availability of books--not only in individual homes, but also in neighborhood stores, libraries, and public schools. (9) Language can also be a barrier for minority populations. More than 60 million U.S. residents speak a language other than English at home. (10) Many public libraries stock at least a modest Spanish collection, and programs that provide free Spanish-language books to Hispanic families have shown a significant impact upon early childhood reading. (11) It becomes progressively more difficult, however, for these strategies to reach speakers of lesser-spoken languages such as Tagalog (1.6 million U.S. speakers), Hmong (211,000), or Navajo (169,000). (12)

The conversation on global hunger has begun to recognize that simply producing more food is not enough; questions of distribution are fundamental. (13) It is time for the conversation on copyright law to have a similar reckoning.

Currently, questions of social inequality and distributive justice lie in the peripheral vision of copyright scholarship. (14) Copyright doctrine and policymaking have also focused overwhelmingly on calibrating incentives to maximize productivity. (15) It is a bedrock principle of both doctrine and scholarship that copyright protection exists to incentivize authors and publishers to produce more new works. (16) An ample body of copyright scholarship queries whether our current system of copyright protection does in fact efficiently provide these incentives and seeks ways to improve the law to encourage even greater productivity. (17) Reflecting this emphasis on creative productivity, the American fair use doctrine authorizes courts to modify the scope of copyright's statutory protection "'when, on occasion, it would stifle the very creativity which that law is designed to foster.'" (18)

Alongside this primary focus on production, a much smaller body of scholarship has focused on issues of distribution. One line of copyright scholarship with a distributive justice emphasis explores the question of how to fairly allocate rights between creators and users. (19) A second line of scholarship contrasts the economic circumstances of industrialized countries with developing ones, suggesting that copyright law must be tailored to these differing circumstances. (20) Yet the broad categories of creators and users, or "industrialized" and "developing" countries, may overlook the even more fundamental impact of social inequalities within these categories. The world in which we live is characterized by profound social divides along lines of wealth and ethnicity. How do these divides of class and culture shape copyright law's impact on opportunities for all people to access knowledge and take part in cultural life?

The relative silence of copyright scholarship on questions of social inequality ought to strike us as odd. It is well recognized that property law generally has significant implications for the distribution of wealth and social advantage, which may be critiqued from a variety of social justice perspectives. (21) The distributive justice implications of intellectual property law are also well recognized in the context of pharmaceutical patents, where the affordability of medicines is a focus of significant scholarly and policy concern. Yet copyright scholars have been relatively slow to draw the logical parallel to express concern for the poor's ability to access copyrighted works. (22) Even less attention has been dedicated to the impact of language divides on the production and distribution of copyrighted works. Membership in certain linguistic groups profoundly limits the world of materials that an individual can effectively utilize. Yet the copyright literature has largely overlooked this problem. (23)

The failure to account for how profoundly social inequalities of class and culture shape access to copyrighted materials has also led copyright lawmaking in the wrong direction. The dominant account of copyright law emphasizes its virtues in providing market-based incentives for cultural production, implicitly presuming that a greater diversity of offerings is the primary end goal and that accessibility will be relatively unproblematic. Reflecting this conventional wisdom, copyright law has steadily expanded the scope and duration of protection, effectively commodifying an evergreater proportion of cultural life as objects of trade in a booming global marketplace. Unfortunately, not all people have even a minimally adequate capacity to participate in this marketplace. (24) Copyright protection is making cultural works substantially more expensive, impeding translations into other languages, and inhibiting the emergence of open business models that might reach more people in more places. (25) The very doctrines and policies justified as enhancing the incentives for cultural production are unwittingly reinforcing social disadvantage and exclusion from cultural participation.

My aim in this Article is not to push any particular solution to the problem of copyright and inequality. My more modest goal is simply to put this long-overlooked reality squarely on the table. Only by developing a shared understanding of the problem can we begin a deeper discussion about its ethical implications and possible solutions. This Article focuses specifically on the context of books and opportunities to read and write, as an area of cultural participation of particular importance for education and other life opportunities. Many of the insights about cost and accessibility, however, will also hold true for other genres of cultural creativity.

Part I, "A Case Study in Book Hunger," begins by exploring how social inequalities structure access to copyrighted works in South Africa. Empirical data demonstrate that South Africans of all ethnicities and social classes enjoy reading and would like to read more often, yet they are frustrated in pursuing this desire. Even relatively affluent South Africans identify the high price of books...