Envisioning Copyright Law’s Digital Future

Guest Lecturer, Peter Menell, Professor of Law and the Director of the Berkeley Center for Law & Technology.

For much of the past century, copyright law provided critical
infrastructure supporting markets for creative works. The technology of
distribution — paper, celluloid, vinyl, tape, and broadcasting —
effectively controlled piracy while exclusive rights provided a secure
foundation for licensing of creative works. These markets provided the
means for creators to connect with and, importantly, derive revenue from
those who valued their creativity — the fans. This mechanism fostered
vibrant ecosystems in which the most popular creators rose the top and
markets supported a burgeoning supply of professional creators and
institutions. Intermediaries — such as publishers, record labels,
studios, and broadcasters — performed important economic functions
(talent identification, project development, production, manufacturing,
marketing, and distribution) and claimed a significant share of the
revenue stream.

The emergence of the Internet has disrupted this
marketplace in several respects — some of which reduce the need for
traditional intermediaries and others that eviscerate market
transactions. For example, it is now easier for musicians to reach an
audience, but more difficult to support their livelihood. Most music
fans see little reason to purchase access to the songs they love, while
record labels have largely withdrawn from supporting emerging talent and
have taken a particularly stingy approach to the division of the
revenue, increasingly from digital distribution, that remains. The net
effect is to squeeze the creators and dampen the prospects for
professional musicians. Journalism reflects another increasingly
pathological ecosystem, in which the prospects for professional news
gatherers and commentators are growing bleaker by the day. Perhaps
bloggers and citizen journalists will fill some of the void, but the
risks of displacing a Fourth Estate comprised of experienced and
professional journalists raises serious societal concerns. This
presentation will illustrate these patterns and explore the challenges
of copyright policy in the digital age.