The past 25 years have seen a ‘turn to culture’ in copyright scholarship. This cultural turn has produced an expansive account of copyright’s disadvantages with respect to qualitative cultural and political goals such as: promoting democracy, individual self-authorship, expressive diversity, and more inclusive power distribution in shaping culture and discourse. The prevailing view among proponents of the cultural turn is that copyright stands in the way of the democratisation of creative and discursive spheres online. This article challenges that view. I contend that online, ‘free’ content economies—characterised by peer production, decentralised selection, and peer to peer content sharing—have not lived up to the hopes of cultural turn thinkers. I focus on structural matters (structures of incentive, structures of power), critically applying descriptive and normative frameworks of the cultural turn. Proponents of the cultural turn have been concerned about copyright’s role in concentrating cultural power. They should also be concerned about concentrations of cultural and communicative power in ‘free content’ economies. If they were concerned that commercial incentives under copyright regimes privileged bland and homogeneous content, they should also be concerned about the troubling incentives at play in online economies based on harvesting user attention and selling advertisements. This is not to say we should aim for maximalist copyright online. I show that both expansions of exceptions and limitations to copyright, and measures that strengthen copyright owners’ exclusive rights, may entrench problematic incentives and power structures both online and off. The practical implication of my analysis is this. We should carefully assess how developments in law (proposed or actual) affect structures of power and incentive in the creative sphere as a whole, whether they formally ‘weaken’ copyright or ‘strengthen’ it.
Henry Fraser PhD,
The Disappointments of Networks,
Chi. -Kent J. Intell. Prop.
Available at: https://scholarship.kentlaw.iit.edu/ckjip/vol19/iss1/10