Copyright’s Communications Policy

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.