Copyright Law as a Silencing Restriction on Non-Infringing Materials - Unveiling the Real Scope of Copyright's Diversity Externalities

Abstract

The main argument presented in this Article is that the harms and social costs of copyright cannot be summarized just in terms of enclosure and exclusion. Copyright law, I will argue, also has a silencing effect toward noninfringing creative materials of other independent creators and producers. Recent scholarly work has emphasized copyright's dynamic effect, that is, the ongoing influence of expansive copyright protection toward an enclosure of the creative commons, and diminishment of cultural diversity. On the whole, however, this broad approach regarding the social cost of copyright in terms of diversity has focused only on instances and frameworks of creative activity in which a secondary author wishes to make use of existing copyrighted material, while a copyright owner (often a media conglomerate) imposes obstacles and limitations against such a use. The argument presented in this Article goes one step further in exploring the nexus of copyright and diversity. As I will show, an expanded copyright regime diminishes diversity in a more intrusive manner. Extensive copyright protection also has a chilling effect on the variety and diversity of creative works that are both noninfringing and not affiliated to copyright portfolios, or to the communicative activity, of commercialized corporate media. This outcome derives from the leverage extensive copyright protection affords to excessive exposure of corporate media's creative materials, as well as to the economic and cultural dominance of these media products. This Article demonstrates how the unique characteristics of media products, as public and goods, together with the advantages that extensive copyright protection grants large-scale corporate media, prevent alternative, noninfringing creative materials from reaching effective audience attention and competing equally for the public's attention and cultural preferences. Extensive copyright protection does so, first, by enabling commercialized media to deepen their market dominance and the cultural centrality of their products through ancillary and derivative markets, and second, by producing a solidarity value for the commercialized and commodified nature of media products. As this Article demonstrates, it is in this sense that extensive copyright protection has an undesirable silencing effect on noninfringing creative materials, and further diminishes diversity by inducing a wasteful competition among corporate media's relatively homogeneous products.