Copyright History and the Future: What's Culture Got to Do With It?

Abstract:     
This Article seeks to prompt thought about future copyright lawmaking in the light of the past. Its first part draws some hypotheses about copyright functions from copyright history, which it analyzes into three periods. The pre-copyright period extended through the seventeenth century: toward the end of this period, printing generated risks of piracy, and mercantilist European states responded with centralized regimes that both accorded printing monopolies and censored the media. The period of classic copyright ran from the eighteenth to the late nineteenth century: copyright laws allocated rights out to authors, and these rights could then be contractually granted to media enterprises responsive to the public, thus decentralizing decision-making about creating and enjoying works in open markets. The period of global copyright started toward the end of the nineteenth century and continues today: copyrights have been expanded and transplanted to secure income streams for increasingly industrialized media enterprises, allowing them to forge new channels for releasing more works into ever-larger markets.

The second part of the article then considers some copyright issues that are likely to arise in the near future, as the patchwork of media markets and copyright laws worldwide shifts to one networked marketplace. This shift holds very different promises and risks for different industries and authors, as well as for the mass of end-users who now more easily become creators directly inputting into the global marketplace. Given the global and mass reach of the emerging media marketplace, it is argued that, in resolving these issues, lawmakers should increasingly harmonize and simplify copyright rules worldwide. Further, in response to the potential of new media for accelerating both cultural free-riding and feedback, judges may more often have to tailor the scope of rights at the level of remedies.

However, the very novelty of some of these near-term issues often makes it hard to draw appropriate rules and remedies out of traditional copyright rationales. The third part of the article then critiques established utilitarian and natural-rights rationales of copyright to clear the way for new solutions. Neither rationale tells us how much protection suffices to control cultural free-riding, nor when too much protection stifles cultural feedback. Historical evidence supports a bridging doctrine: copyright laws should help to optimize media channels for creativity.

JEL Classifications: K11, K19, K39, L82, Z1

Accepted Paper Series