Distributive Values in Copyright
Molly Shaffer Van Houweling
University of California, Berkeley - School of Law
Texas Law Review, Vol. 83, p. 1535, 2005
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.
Number of Pages in PDF File: 45
Keywords: Copyright, distributive justice, first amendment, communications
Date posted: February 23, 2005