Remarks for the Future of Copyright Conference

Abstract

These remarks were prepared for the Future of Copyright Conference on October 12, 2007 at the University of South Carolina. They focus on three interesting new developments affecting copyright: 1) voluntary adoption of 'free' access models by commercial copyright owning entities experimenting with different business models; 2) some copyright owners' apparent acquiescence in a 'permitted until prohibited' or 'tolerated use' culture; and 3) developments permitting a shift in the copyright rhetoric from 'property vs. the commons' to 'property vs. property.' The remarks then address three questions raised by these developments. The first is the 'unintended consequences' question: Should we be worried about the potential consequences of some copyright industries' exploration of a 'free with advertising' model on freedom of expression and the richness of the expressive domain overall? The second is the 'burden of policing' question: Even if the copyright industries have been engaging in more tolerated use and copyright law now permits what is effectively a 'permitted until prohibited' regime on the web, are these really stable developments on which users can rely? Does the current information landscape raise more complex questions about the various players' interests in the protection of content and does burden-shifting to police copyright adequately address the issues raised? Finally, the recent developments raise the 'new rhetoric' question: Given the extent to which property rhetoric has trumped commons rhetoric in the first generation of copyright expansion, do recent developments support a 'property vs. property' rhetoric displacing the 'property vs. the commons' rhetoric? If so, are dueling property interests anything more than a useful rhetorical device in lobbying discourse? Although both sides can now appropriate some of the cultural value of property rhetoric - and this defangs the presumptive property trump - this development is more important as a way of refocusing the conversation (to the policy interests on both sides and the choices that we have to make regulatorily). Just as in communications law, key issues here that merit attention are interoperability rules, industry structure, market failures and the effects of consolidation.