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.1 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.2 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.3 The "speech hierarchy" created by these disparities threatens to undermine the "expressive diversity and robust debate [that] are vital to democratic governance."4 At the same time, Netanel concedes that other aspects of speech hierarchy actually promote democracy, by providing the incentives for the creation of new speech5 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.6 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.7 Towards 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,8 and the "minimalist critics of copyright expansion," who would drastically reduce the scope of copyright protection (if not abolish it altogether).9 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. Instead, Netanel's analytical structure turns them into complex decisions that are susceptible to richly textured and highly nuanced resolution. This degree of complexity comes at a high price, however. Unlike perspectives that take a more black-and-white approach to copyright law, which can often draw strong inferences without having to sift through the various shades of gray, Netanel's approach by its very nature requires more. It necessarily requires some means for trading off the opposing interests that Netanel has identified. This Commentary explores Netanel's definition of the issues at stake and the way he proposes to balance them. Part I examines from an economic perspective one of the key factual premises upon which his proposal is based: the relationship between media concentration and program diversity. Part II analyzes the theory underlying Netanel's contribution to this symposium. Although I find much to admire in it, I find the theory upon which it is based to be too incompletely defended and articulated at this point to support the careful balancing it envisions. The project's success will ultimately depend on the extent to which his further work further defines precisely how copyright interacts with the democratic process. I. THE AMBIGUOus RELATIONSHIP BETWEEN MEDIA CONCENTRATION AND DIVERSITY Netanel's theory of copyright rests in no small part on a key positive claim: that excessive concentration in media industries is inhibiting the diversity of television programming. In relying on this premise, Netanel follows in the footsteps of a number of distinguished scholars and policy-makers who have raised similar concerns.10 As Netanel notes, however, the evidence offered in support of this factual inference has largely been anecdotal.11 There are four strands of economic analysis that attempt to bring greater analytical rigor to these questions. The first relies on game theory, the second applies principles of monopolistic competition, the third applies public choice theory, while the fourth consists of empirical studies of program choice. …