Copyright's communications policy.

Author:Wu, Timothy


There is something for everyone to dislike about early twenty-first century copyright. Owners of content say that newer and better technologies have made it too easy to be a pirate. Easy copying, they say, threatens the basic incentive to create new works; new rights and remedies are needed to restore the balance. Academic critics instead complain that a growing copyright gives content owners dangerous levels of control over expressive works. In one version of this argument, this growth threatens the creativity and progress that copyright is supposed to foster; in another, it represents an "enclosure movement" that threatens basic freedoms of expression? Copyright, these critics argue, has wandered beyond its proper boundaries. They also contend that the balance must be restored.

What all these arguments have in common is a focus on copyright's "authorship" function. Copyright policy, in this view, is fundamentally about providing a balance of incentives for authors to effectuate one of several possible goals, such as progress of science, democratic governance, or the system of free expression. Few disagree that these are the goals; the main disagreement is over what means best serve these ends.

Yet the recent history of copyright forces us to ask whether this debate can capture what is right and wrong with the law. Both sides point to the same problem: a tragedy of authorship caused by their opponents. Critics of copyright say that aggressive over-enforcement deters those who would borrow from others to create, such as music samplers, satirists, and filmmakers. Copyright's backers warn, conversely, that piracy threatens the very livelihood of the artist and creative industries. The story of twin tragedies, however, creates an indeterminate debate. Both positions have difficulty demonstrating empirically, as opposed to anecdotally, that either overprotection or piracy has stilled the engines of creativity. Any putative change in copyright protection can both be defended as a necessary creative incentive and attacked as an unnecessary control.

This Article suggests that the main challenges for twenty first century copyright are not challenges of authorship policy, but rather new and harder problems for copyright's communications policy: copyright's poorly understood role in regulating competition among rival disseminators. Since its inception, copyright has set important baselines upon which publishers and their modern equivalents do business. As the pace of technological change accelerates, copyright's role in setting the conditions for competition is quickly becoming more important, even challenging for primacy the significance of copyright's encouragement of authorship.

None of this is to say that the debate over authorship is a sham, or that copyright's role in incentivizing authorship is unimportant. The law, I suggest, can be usefully understood in a modular fashion: as comprised of both authorship and communication regimes with often independent functions. The first regime is the familiar system, run by the courts, that grants exclusive rights to encourage creativity. The second is a messier regulatory regime comprised mainly of the sections of copyright that have always perplexed copyright theorists and have never fit the central theme of author-incentives. This de facto communications regime runs through the legislative process and the courts, and largely takes the form of industry specific liability rules, court created immunities, and special accommodations.

The study of copyright's communications policy has both a descriptive and a normative payoff. First, it helps us understand both the existing copyright code and the history of twentieth century copyright. Much of the existing copyright code is difficult to describe as a device for providing incentives to create new works. That description may fit various "core" doctrines that consume the bulk of scholarly attention, such as the idea/expression dichotomy, term limits, and parts of the fair use doctrine. (2) But the copyright code is also full of complex compulsory licensing schemes and technologically specific immunities. (3) The link to authorship in such sections is unclear at best. I suggest it will be useful to understand these apparent anomalies as part of copyright's regulation of competing disseminators.

The observation is confirmed by copyright in the twentieth century, where the law has played a recurring role in competition between incumbent and challenger disseminators. What follows characterizes the copyright's communications policy into two modes ("classic" and "new") corresponding to two time periods. In the first, from 1900-1976, the copyright's classic communications regime evolved through a series of long and extensive conflicts between competitive rivals, such as cable and broadcast, radio and song-writers, and the early recording players and sheet music publishers. This era is characterized by judicial reluctance, even in the face of precedent, to extend to incumbents rights of copyright that might be used for market advantage over a technologically advanced rival. The statutory result were the series of government mandated access schemes, known to copyright lawyers as "compulsory licenses," that make up the bulk of the copyright code and are otherwise difficult to characterize.

The second period, from the 1976 Act onward, has witnessed the emergence of a "new" communications policy. New sections of the law regulating competition among disseminators have emerged as a response to a transformation in the nature of the challenge to incumbents. Faced with an alliance between passive but enabling technologists and non-commercial but infringing users, copyright owners have convinced Congress to enact two new streams of copyright law. The first is a set of rules for managing the relationship between technologists--largely, the electronics and internet industries--and traditional disseminating industries, typically in the form of judicial or legislative safeharbors. The second stream is a series of "anti-piracy" rules that seek to put direct controls on user behavior.

The study of copyright's role in regulating competition, I suggest, reveals a copyright that theorists may hardly recognize. It is not that scholars are unaware of copyright's role in communications policy--the importance of "dissemination" has always been recognized as a goal of copyright. (4) The point, rather, is that the author-centrism of copyright theory has left little basis to evaluate or criticize copyright's decisions that create communications policy.

There is, finally, a normative payoff from the study of copyright's role in communications regulation. In the last several decades, the United States has generally endorsed a model of open, competitive innovation as its national communications policy. It is, in other words, a point of agreement that neither government nor industry monopolists are well situated to choose what technologies or firms the nation should use to communicate, now or in the future. Copyright, as it grows in importance, should not be exempt from such principles. Few would disagree that the basic vision of competitive innovation is an attractive vision. Although many may disagree on how the goal might best be achieved, it cannot be reached without an awareness of the role that copyright plays in setting national communications policy. That requires that judges and policymakers further develop an appreciation of copyright's effects on parties other than authors.

The Article is divided into three parts. The first describes American copyright's "classic" communications policy. After situating the communications perspective in traditional copyright theory, it explains where the legal expression of copyright's communications regime can be found, and details its evolution during the period of 1900-1976. The second part is primarily theoretical. It provides tools, taken from telecommunications and competition theory, for understanding and analyzing the communications policies that copyright has implemented. The third part describes copyright's "new" communications policy, which has evolved post-1976. It closes on a normative note, suggesting how courts and lawmakers can decide copyright issues with an eye to their effects for competition and national communications policy.


    1. Author-Centrism

      Copyright theory is traditionally depicted as a long conflict between two dueling theories. In accounts now very familiar to copyright theorists, the first of these warring theories is Anglo-American and describes the purposes of copyright as "utilitarian" or "economic." (5) It premises the existence of copyright on market failure. (6) Copyright exists to provide incentives for authors to produce works and thereby avoid the underproduction that might otherwise result. (7) Under this theory copyright law is ultimately similar to other forms of economic legislation; it is Lord Macaulay's "tax on readers for the purpose of giving a bounty to writers." (8)

      The rival to the Anglo-American view resides mainly on the Continent and is known in the United States as the natural rights theory of copyright. It suggests that authors have a moral right to the fruits of their labors: copyright is granted because the author deserves it. (9) One version of this idea says that authors should be rewarded for the value they contribute to society. (10) Another suggests a natural link between creation and ownership: the author owns his (smaller) creation in just the manner that God owns his (slightly larger) creation. What you create is yours: "'to every cow her calf.'" (11)

      Today this traditional debate has taken on a modern gloss. Natural rights theories, in the United States at least, have retreated to the status of foil, used more to accuse than to defend. (12) The dominant starting point for most American scholarship...

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