Creators' Rights Alliance - Between a rock and a hard place - B: Why these abuses need correcting
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Creators' rights assist democratic discourse

Copyright has been heralded by many as a significant contributing component of a well-functioning democracy[1], which requires the free circulation of information and free expression of opinion. We can only control the legislature and government if we can form opinions about them. Such opinions are formed not merely by contact with explicitly political views but also, frequently, through artistic and entertainment media. While much of this is effected through rights to free expression and free association, the production of a variety of opinion is fostered by the existence of copyright law.[2]

Copyright law simultaneously promotes the dissemination of this opinion through organizations which are largely independent of the state: newspaper publishers, broadcasters and so on. This is important in maintaining critical autonomy and expressive diversity. The argument is eloquently made by Dutch legal academic, Professor Bernt Hugenholtz:

“In a pluralist society, the voice of the independent author, free from public or private patronage, cannot be missed. Ideally, freelance authors do not produce their works to order (like their colleagues employed in the information and entertainment industries), but create ‘on spec’ – often non-conformist, ‘non-commercial’ and controversial works. For these authors to survive and prosper, and to produce the kind of ‘speech’ that makes the freedom of expression worth fighting for, the ‘structural function’ of copyright is essential. In the absence of subsidy or salary, copyright constitutes the only means of living the life of an independent creator. In an information society increasingly dominated by media conglomerates sometimes more powerful than governments, keeping this category of authors alive is vitally important.” [3]

Although many commentators argue for a link between copyright and democracy (in the context of a debate over the appropriate level of rights granted to copyright owners and users), for our purposes, what is of significance is the role specifically of creators, rather than publishers or broadcasters. For copyright only serves this purpose if it sustains a “robust, pluralist, and independent sector of authors and publishers.” (emphasis added)[4] In the current climate, the reality is that the avenues for widespread dissemination of ideas are limited (and are increasingly controlled by a small number of conglomerates).[5] This is particularly so in the music industry where five major multinational companies dominate the global business.

If the limited avenues for dissemination are to continue to transmit a diversity of works, it is important that authors retain sufficient autonomy. This can only be ensured if moral rights can guarantee authors control over the form in which their work appears when disseminated to the public and other restrictions on alienability can guarantee authors sufficient financial remuneration to give them a degree of economic independence.[6] As the NUJ explains in battling for copyright, media corporations’ decisions to demand wholesale transfers of copyright are not only damaging to the individual’s livelihood, but are also “damaging to independent journalism at large.”[7]

 



[1] E.g. N. Netanel, ‘Asserting Copyright’s Democratic Principles in the Global Arena’ (1998) 51 Vanderbilt Law Review 217 (“copyright law serves fundamentally to underwrite democratic culture”).

[2] Once again, the arguments are complex. Netanel, ‘Asserting Copyright’s Democratic Principles in the Global Arena (1998) 51 Vanderbilt Law Review 217 (particularly examining the theory in the context of globalization of copyright law) For a critique of Netanel, see C.S. Yoo, ‘Copyright and Democracy: A Cautionery Note’ (2000) Vanderbilt Law Review 1933.

[3] B. Hugenholtz, ‘The Great Copyright Robbery: Rights Allocation in a Digital Environment’ (paper presented at Conference, A Free Information Ecology in a Digital Environment, NYU Law School, 31 March-2 April00 2000.)

[4] N. Netanel, ‘Asserting Copyright’s Democratic Principles in the Global Arena (1998) 51 Vanderbilt Law Review 217, 231. See also, ‘Copyright and a Democratic Civil society’ (1996) 106 Yale Law Journal 283, 358.,

[5] battling for copyright, p.44; C. Lampe, ‘Who Owns Electronic Rights’ (2000) 10 IRIS (Legal Observations of the European Audiovisual Observatory) 15, 19 (Report of round table conference at the Institute for Information Law of the University of Amsterdam).

[6] N. Netanel, ‘Copyright Alienability Restrictions and the Enhancement of Author Autonomy: A Normative Evaluation’, 24 Rutgers Law Journal 347, 441-2 (1993)

[7] battling for copyright, p.22, p.30; The Authors’ Rights for All – Campaign, Background Documents Appendix B (explaining, through European case law, the relationship between moral rights and press ethics).

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