Copyright and a democratic civil society

Digital technology threatens to upset copyright law's delicate balance between author incentive and public access by making possible both widespread copying of authors' expression and unprecedented provider control over user access. This development has sparked a bitter debate over what should be copyright's purpose and scope as we enter the digital age. Professor Netanel first critiques the positions of leading participants in that debate. The ''neoclassicist'' position views copyright as a mechanism for the formation and operation of efficient markets in existing expressive works. It would accord copyright owners with broad, clearly defined, and exclusive rights of control over authors' expression, and, as a result, argues Professor Netanel, would unduly stifle expressive diversity and constrain public access. On the other hand, he maintains, various ''minimalist'' approaches would significantly undermine copyright's support for the creation and dissemination of expression in the digital network environment, largely because they take inadequate account of the market upheaval that will accompany large-scale digital distribution of pictures, sound, and text. Professor Netanel presents a conceptual framework that stands in opposition to both the expansionism of neoclassicist economics and the minimalism of some copyright expansion critics. His framework emphasizes that copyright is, in essence, a state measure that uses market institutions to enhance the democratic character of civil society. In supporting a market for authors' works, Professor Netanel contends, copyright serves two democracy-enhancing functions: it provides an incentive for creative expression on a wide array of political, social, and aesthetic issues; and it supports a sector of creative and communicative activity that is relatively free from reliance on state subsidy and elite patronage. The nature and scope of copyright protection, he argues, must be tailored to further these goals. Professor Netanel concludes by comparing likely doctrinal outcomes of the neoclassicist, minimalist, and democratic approaches in four areas in which the expansion of copyright owner prerogatives have particularly troublesome implications for the digital network environment: the lengthening of duration of copyright protection; the extension of copyright to personal uses; the extension of copyright to transformative uses; and the displacement of copyright by contract.