Copyright and Democracy: A Cautionary Note

Abstract:     
This article responds to recent attempts to use democratic and republican principles as a basis for reforming copyright law. Taking the recent work of Neil Netanel as its text, the article begins by challenging the claim that media concentration necessarily reduces program diversity in a way that justifies reducing the duration and scope of copyright protection. An analysis of the theoretical and empirical literature on the economics of program choice reveals that the relationship between concentration and program diversity is more ambiguous than democratic theorists suggest. Whether concentration increases or reduces diversity depends on additional factors, such as the structure of viewer preferences, the availability of excess channel capacity, program costs, and the availability of direct viewer support in addition to advertising support. It is impossible to determine the impact of concentration on program diversity without analyzing these other factors.

The article also challenges the claim that free speech principles support reducing the duration and scope of copyright protection. To reach this conclusion, democratic copyright theorists rely on an instrumental vision of free speech that values speech only to the extent that it supports democratic decisionmaking. This vision of speech will draw little support from those who view rights as moral constructs, or from those who value speech for its furtherance of other values. Furthermore, any democracy-centered approach must necessarily offer some standard for determining whether copyright is providing the degree and type of public discourse required by the body politic. The failure of democratic copyright theorists to specify a baseline of the amount and type of speech required by a properly functioning democracy makes it impossible to evaluate the propriety of any of the proposed copyright reforms.

Number of Pages in PDF File: 32

Accepted Paper Series