Distributive Values in Copyright

Abstract

In this paper I explore the way that technological developments have changed copyright's impact on the distribution of expressive opportunities. Traditionally, copyright has benefited even poorly-financed amateur speakers by creating a market mechanism by which their work can be financed; in this way copyright has been consistent with strands of First Amendment jurisprudence and communications policy that champion broad distribution of expressive opportunities. But when technology makes it possible for this class of speakers to communicate without copyright-driven financing, the burdens that copyright imposes on their creativity may outweigh the benefits. Unfortunately, while the distributive impacts of copyright are complicated by these technological changes, copyright law and scholarship have developed a focus on market failure that marginalizes distributive concerns. I propose, among other things, a modification of the fair use doctrine that may restore some of copyright's egalitarian cast.

Keywords: Copyright, distributive justice, first amendment, communications