A Copyright Law for a Social Species

Arguments about the proper scope of copyright protection focus on the economic consequences of varying degrees of protection. Most analysts view copyright as an economic phenomenon, and the size and health of our copyright industries measure the success of copyright policies. The constitutional text granting Congress the copyright power and the nature of special interest lobbying naturally create this economic focus; but this is a serious mistake. An exclusively economic focus makes no more sense than measuring the nutritional merits of our food supply from the size and profitability of the fast food industry. The expressive culture that copyright protects arose tens of millennia before markets developed and mediums of exchange were invented. Cultural artifacts, from cave paintings to grave goods and myths of origin, define our species as human. For our ancestral societies, whose hunting and gathering existence was always marginal at best, expressive culture was extraordinarily expensive to sustain, yet everywhere they did. No consensus has emerged as to what purpose expressive culture serves, but its universality strongly suggests that it served an important social purpose, perhaps one fundamental to survival. The technology that now places the world’s culture, past and present, at everyone’s fingertips, has also quietly worked a profound change in the way we experience expressive culture. It has largely eliminated the live performance and replaced it with recorded media. Books have supplanted storytellers, records have replaced musicians, television and movies have superseded dance and drama. Of equal significance, technology has changed a communal and social experience into a private and solitary one. We no longer gather and experience our culture as cohesive groups bound by ties of kinship or other bonds of mutual obligation. Technological innovation produced these fundamental changes, but they have occurred without comment or examination. As with environmental harms like climate change, we risk injury to the social fabric if we ignore what technology has done to our experience of expressive culture. To avoid possible harms, we first must understand the significance of the social experience of expressive culture. This article begins the examination of that significance by examining how technology has heretofore changed our experience