Deprivatizing Copyright

Abstract

My thesis is that while James Madison saw in copyright a coincidence of private interest and public good, historically copyright, with its roots in the Statute of Anne, originated and has developed as a devolution of the sovereign's role in cultural production. This devolution has over time lead to an expansion of private rights over various forms of expressive activities, including literary works, musical works, software, architectural works, and as I emphasize in this article, model legislation, religious texts, and encryption technology. The contemporary debate over copyright reflects this devolution that has been accelerated through decades of deregulation in such diverse areas as the airlines, telecommunications, financial services, law enforcement, pollution control, education, and income distribution policy. Hence, the title of this article: the time has come to recognize both copyright law as a form of privatization and the need to deprivatize copyright in order to realize the public good that Madison envisioned.

Keywords: Copyright, Economics, History, Law