Market Hierarchy and Copyright in Our System of Free Expression

Abstract

At the center of our understandings of political equality and democratic governance lies what might be termed the "Free Speech Principle," the idea that liberal democracy both depends upon and is largely manifested by "uninhibited, robust, and wide-open" debate from "diverse and antagonistic sources." But absent preventative regulation, market hierarchy ? the state of substantial inequality of wealth increasingly prevalent in Western democracies, particularly the U.S. ? translates inevitably into what I refer to as "speech hierarchy" ? the disproportionate power of wealthy speakers and audiences to determine the mix of speech that comprises our public discourse. By effectively silencing outlying minorities and the poor, speech hierarchy runs directly counter to the Free Speech Principle. Moreover, contrary to what some commentators claim, the Internet offers no panacea for the problem of speech hierarchy because, I predict, in significant ways the next-generation Internet will closely resemble the centralized structure of traditional media markets.

Copyright, which today affords content providers unprecedented expansive control over uses of expressive works, exacerbates speech hierarchy. It does so against the background of media consolidation and ownership of exclusive rights to vast inventories of existing expression. Copyright promotes speech hierarchy, both in the static sense (when prospective users are unable to obtain permission to use existing works) and the dynamic sense (by increasing the costs of expression for individuals and entities who must purchase expressive inputs from media conglomerates and by favoring entities that can engage in effective price discrimination in the sale of their expressive goods).

Yet, I argue, despite its conflict with the Free Speech Principle, at least some measure of speech hierarchy is a necessary condition for liberal democracy. Liberal democracy requires media enterprises with the political independence and financial wherewithal to reach a mass audience, galvanize public opinion, and engage in sustained investigative reporting and critique - what we might term the "Free Press Principle" - no less than it requires wide-open debate from diverse sources - the Free Speech Principle. A universe of yeomen authors could not fulfill those functions.

To the extent that speech hierarchy supports the Free Press Principle but runs counter to the Free Speech Principle, copyright law and media policy must seek to moderate between the two. They must enable, and indeed support, a degree of market hierarchy in the expressive sector even as they seek to ameliorate the most deleterious effects of media concentration and foster expression from a broad spectrum of adverse and antagonistic sources. The scope of copyright owner rights and limitations to those rights should be determined within that framework.

Keywords: Copyright, free speech, media, Internet, democracy