Author Autonomy and Atomism in Copyright Law
Molly Shaffer Van Houweling
University of California, Berkeley - School of Law
August 11, 2009
Virginia Law Review, Forthcoming
Digital technology enables individuals to create and communicate in ways that were previously possible only for well-funded corporate publishers. These individual creators are increasingly harnessing copyright law to insist on ownership of the rights to control their musical works, scholarly research, and even Facebook musings.
When individual creators claim, retain, and manage their own copyrights, they exercise a degree of authorial autonomy that befits the Internet Age. But they simultaneously contribute to a troubling phenomenon I call “copyright atomism” - the proliferation, distribution, and fragmentation of the exclusive rights bestowed by copyright law. An atomistic copyright system is crowded with protected works and rights, owned by rights-holders who are numerous and far-flung. This situation can raise information and transaction costs for participants in the creative marketplace, hampering future generations of creativity and thus undermining the very purpose of copyright: to encourage the creation and dissemination of works of authorship for the ultimate benefit of the public.
This article introduces and articulates the copyright atomism concept. It then places atomism in historical and doctrinal context by documenting copyright law’s encounters with proliferated, distributed, and fragmented copyright ownership from medieval monasteries to the Internet age. This history demonstrates the enduring relevance of anxiety about atomism within copyright policy, highlights countervailing concerns, and provides a framework for thinking about how to alleviate the unfortunate contemporary consequences of atomism - and how not to.
Number of Pages in PDF File: 63
Keywords: intellectual property, copyright, atomism, fragmentation, anticommons
JEL Classification: O34
Date posted: June 18, 2009 ; Last revised: October 13, 2009