Copyright and Democracy: A Cautionary Note
Democratic theories of copyright have become quite the rage in recent years. A growing number of commentators have offered their views on the relationship between copyright law and the process of self-governance.' No scholar has been more committed to developing this perspective than Neil Netanel. In an important series of articles, Netanel has pursued a powerful and innovative project that attempts to reexamine copyright through the lens of democratic theory. His core concern is that the concentration of private wealth and power in communications and mass media is creating unprecedented disparities in the ability to be heard. The "speech hierarchy" created by these disparities threatens to undermine the "expressive diversity and robust debate [that] are vital to democratic governance." At the same time, Netanel concedes that other aspects of speech hierarchy actually promote democracy, by providing the incentives for the creation of new speech and by fostering an independent sector of authors and publishers with the political and financial wherewithal to guard against the excesses of both big government and big business. The challenge, then, is to structure copyright so that it strikes the "careful balance between exclusivity and access" that democracy needs in order to endure. To- wards that end, Netanel offers a cluster of reforms designed to steer a middle course between adherents of the "neoclassical approach to copyright," who blend price theory and new institutional economic theory to justify strengthening intellectual property rights, and the "minimalist critics of copyright expansion," who would drastically reduce the scope of copyright protection (if not abolish it altogether) .
One cannot help but admire the sophistication and subtlety of Netanel's approach. Framing the issues as a conflict between competing interests has the natural effect of focusing attention on the tradeoffs inherent in any policy choice. The various aspects of copyright no longer appear as single-dimensional constructs. In- stead, Netanel's analytical structure turns them into complex deci- ENT. L.J. 215 (1996). These debates have crossed over from the academy into the courts. Just last month, the D.C. Circuit heard oral arguments in a case challenging the Copyright Term Extension Act of 1998 on First Amendment grounds. See Eldred v. Reno, No. 99-5430 (D.C. Cir. argued Oct. 5, 2000).