Copyright's Law of Dissemination

Abstract

Intellectual property generally rests on the assumption that markets will bring about an ideal allocation of resources. Nonetheless, copyright law remains riddled with regimes that bypass or restructure normal market licensing between copyright owners and distributors such as streaming services, radio stations, and libraries. This Article provides the first comprehensive account of this “law of dissemination,” examining how a range of seemingly unrelated judicial doctrines, statutory safe harbors, and regulatory institutions together affect the relationship between copyright owners and the entities that disseminate creative works to the public.

While these regimes are often treated as unintelligible historical relics, they make more sense than many believe. The Article argues that copyright has a particular set of policy concerns related to the dissemination of creative works for the public’s consumption, enjoyment, and personal use. In particular, four interrelated goals are reflected to varying degrees in copyright’s many dissemination-regulating institutions: (1) facilitating exchanges in transaction cost-heavy contexts, (2) enabling more efficient and expansive public access to existing creative works, (3) reducing barriers to entry for innovative forms of distribution in concentrated markets, and (4) furthering distributive-justice priorities.

Identifying these four goals and examining how they permeate the copyright system is a necessary first step in remedying many of the problems currently faced by copyright’s law of dissemination, particularly its increasingly outmoded, piecemeal, and inconsistent regulatory design. By diagnosing these challenges and their potential roots, the Article provides grounding for assessing how copyright law can be reformed to fit a world of almost entirely digital dissemination.

Keywords: intellectual property, copyright, law and technology, administrative state, antitrust