DAN HUNTER
University of Pennsylvania - The Wharton School
F. GREGORY LASTOWKA
Rutgers, The State University of New Jersey - School of Law-Camden
William & Mary Law Review, Vol. 46, December 2004
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=601808
Abstract:
Copyright, it is commonly said, matters in society because it encourages the production of socially beneficial, culturally significant expressive content. However our focus on copyright's recent history blinds us to the social information practices which have always existed. In this article, we examine these social information practices, and query copyright's role within them. We posit a functional model of what is necessary for creative content to move from creator to user. These are the functions dealing with creation, selection, production, dissemination, promotion, sale, and use of expressive content.
We demonstrate how centralized commercial control of information content has been the driving force behind copyright's expansion. However, all of the functions that copyright industries used to control are undergoing revolutionary decentralization and disintermediation. Different aspects of information technology, notably the digitization of information, widespread computer ownership, the rise of the Internet, and the development of social software, threaten the viability and desirability of centralized control over every one of the content functions. These functions are increasingly being performed by individuals and disorganized, distributed groups.
This raises an issue for copyright as the main regulatory force in information practices, because copyright assumes a central control structure that no longer applies to creative content. We examine the normative implications of this shift for our information policy in this new post-copyright era. Most notably we conclude that copyright law needs to be adjusted in order to recognize the opportunity and desirability of decentralized content, and the expanded marketplace of ideas it promises.
Keywords: Copyright, expressive content, culture, peer production