Copyright and inequality.

• Author: Shaver, Lea
• Position: III. Recommendations through Conclusion, with footnotes, p. 154-168

3. RECOMMENDATIONS

Copyright protection is intended to encourage the creation of new works, but its system of exclusive rights also makes it more difficult for people to access and engage with those works. By making reading a privilege of those who can afford to pay, copyright law can create barriers to a broader set of life opportunities for education, personal and professional development, cultural participation, and democratic dissent. These barriers are easily overcome by the relatively privileged, but are often insurmountable for those with fewer advantages in life. This exclusionary dynamic operates at the level of social class, and is additionally complicated by the intersection of class with linguistic group membership. This restricts the ability of most of the world's people not only to read for pleasure and knowledge, but also to use reading as a stepping-stone to their own critical thinking and creativity--to take part in cultural life as both a consumer and a creator of knowledge.

Restructuring copyright law to promote a more equitable vision of cultural exchange and participation begins by recognizing this disparate impact. The final Part of this Article goes further to explore the question of what to do about this problem. How can we transform copyright law into a vehicle for expanding opportunities and advancing equality, instead of accidentally reinforcing social disadvantage? This Part presents several suggestions for how the inequality insight might reshape copyright law and support for creativity, along four lines of enquiry. First, I explore ways that the inequality insight can inform existing debates on aspects of copyright regime design--ranging from the length of the term of protection, to resale rights, to statutory licensing, to fair use and fair dealing. Next, I draw attention to the potential of policy levers and private initiatives beyond copyright law to promote creativity that is accessible to all. Third, I explore the existence of financial incentives for creative production that do not rely on copyright-based exclusion, suggesting that these open business models hold promise for responding to the inequality insight. Finally, I explore the potential virtues of a "syncretic" approach to copyright design, which more creatively incorporates aspects of protection and openness in light of inequality insight.

1. Rethinking Copyright Law

   Rethinking copyright law in light of the inequality insight requires being attentive to the impact that choices within copyright law--the details of copyright regime design--have on affordability of works. Books may be privately shared, loaned to the public, resold to new owners, rented for a profit, copied for classroom distribution, translated into new languages, or adapted into new formats only to the extent that copyright law permits those practices. At present, these choices are often made without consideration of their impact on accessibility and distributive justice in the context of social inequalities.

   For instance, the U.S. "first sale doctrine" limits the ability of copyright holders to forbid the resale or rental of books, artwork, movies, and many other types of works. (141) The first sale doctrine is traditionally justified in terms of economic liberty, reflecting the common law right of a property holder to dispose of his chattels as he pleases. (142) Less frequently acknowledged is its critical impact on price and affordability: thriving markets in used and rental works can bring down the cost to consumers of accessing such works. (143) Used copies are typically resold at a lower cost; the availability of cheaper used works in the marketplace may also provide a competitive pressure to lower the price of new works. Currently, digital works such as music downloads and e-books are often exempted from first sale doctrines, allowing publishers or distributors to prohibit their resale. This may have problematic implications for affordable access as the market increasingly transitions to digital delivery. A greater recognition of inequality in copyright policy suggests that scholars and policymakers should examine whether extending the first sale doctrine to e-books would improve affordability and access.

   A second aspect of copyright regime design that can be informed by the inequality insight is copyright term--the length of time for which copyright protection endures. As discussed earlier, empirical research suggests that copyright term extensions result in much higher prices. (144) This fact suggests that significantly reducing the term of copyright protection--perhaps even to the 14 years originally provided in the U.S. by the Copyright Act of 1790--could dramatically improve the availability and affordability of books. Even the editors at the Economist have argued that increasingly lengthy copyright terms make little sense in a world where the costs of creative production are continually declining. (145) For political reasons, however, a reduction in the term of copyright protection is not a realistic possibility. (146) Further extensions in the term of copyright, however, might be opposed on grounds of distributive justice.

   Other aspects of copyright law, however, might more easily be adjusted to promote affordability. For example, American copyright law provides a statutory licensing scheme for musical compositions and recordings. (147) This system reduces the transaction costs of obtaining permission to perform and record musical works. A regulatory body is charged with negotiating standard rates, and private digital rights clearinghouses facilitate easy purchasing at those rates. The result is that it has become relatively easy and cheap to obtain a license to record and sell a song. Composers and musicians probably earn more than they would in the absence of such a streamlined marketplace for permissions. This model might be adapted to facilitate automatic licenses for book translations. This would make it much easier for translators and publishers to obtain rights to market translated works and serve neglected audiences.

   Fair use doctrines--known in many countries as fair dealing--could also be adjusted to promote access and affordability across dimensions of social inequality. The touchstone of American fair use jurisprudence is the concept of "transformative" use, which is generally interpreted to require altering the underlying work in a way that adds new meaning and message. The fair use analysis also takes into account the potential for "market harm," which is understood as depriving the copyright holder of expected sales. With some adjustments, fair use doctrine might be developed to accord greater freedom for translations into neglected languages. Translation has not yet been recognized as a form of transformative use under U.S. copyright law, but arguably it should be. (148) The ultimate determination of fair use would therefore hinge on the question of market impact, which should take into consideration whether the original author had reasonable expectations of generating sales within a particular language or not. This would allow the law to facilitate unlicensed translations into neglected languages without disrupting the existing market for licensed translations in those languages with a well-functioning publishing industry.

2. Looking Beyond Copyright Law

   The few examples provided in the previous section demonstrate the potential of the inequality insight to inform choices within copyright law. But the inequality insight should also push us to look beyond copyright law for effective solutions to book hunger. It is already taken for granted that the provision of health care and education require a mixture of for-profit activity and social subsidy. This is true of reading material as well.

   Despite the theoretical emphasis on market provision of cultural works, the book industry has in fact long been the product of a mixture of market activity and public effort. Publicly subsidized universities employ many of our authors and train nearly all of them. (149) National programs for the arts often provide income support to writers and other creators. In wealthier countries, education departments purchase tens of millions of books with tax dollars, providing them free of charge to primary and secondary students. (150) In the United States, more than one billion dollars of tax revenue is spent each year to purchase books for community libraries. (151) These public funding mechanisms work in tandem with the for-profit publishing market to address recognized market failures--points at which the market alone would produce a suboptimal result. These public distribution mechanisms are particularly critical for low- and middle-income readers. (152) The inequality insight calls for an even greater emphasis on legal and policy interventions to address such market failures.

   The set of solutions designed to address the shortfalls of the marketplace must vary from country to country. In the United States, public libraries have functioned as a major strategy to address the problem of inequality in opportunities for reading. Public libraries are, however, an expensive access strategy. America's local libraries spend more than $10 billion per year. (153) Even this significant investment has a limited ability to address the problem of book hunger in America. (154) The public library strategy is likely too expensive to meet the vastly greater needs of countries with fewer public resources. Developing countries may need to adopt more innovative solutions, such as subsidizing the production of Open Educational Resources--textbooks and other learning materials that may be downloaded, printed, used, and shared free of charge. (155)

   Already, a new field of "social publishing" is emerging to serve readers in neglected languages. (156) Nonprofit organizations such as the African Storybook Project in South Africa and Pratham Books in India...