On Copyright’s Communications Policy

There is something for everyone to dislike about early twenty-first century copyright. Owners of content say that new and better technologies of infringement have made it too easy to copy expressive works. Easy copying, they say, threatens the basic incentive to create new works; hence, new rights and remedies are needed to “restore the balance.” Most academic critics complain, instead, that a newly enlarged copyright and new mechanisms of technological self-help give content owners unprecedented levels of control over content. This, in one version of the argument, threatens the creativity and progress that copyright is supposed to foster; in another, it represents an “enclosure movement” that threatens basic freedoms of expression. Copyright, these critics argue, has overgrown its proper boundaries. The balance, again, must be restored. What these arguments have in common is a focus on copyright’s “authorship” function. Copyright policy must balance incentives and access costs to effectuate one of various constitutional goals: progress of science, democratic governance or the system of free expression. Few disagree that these are the goals: the main disagreement is over what means serve these ends