Copyright and Control Over New Technologies of Dissemination

Jane C. Ginsburg, Columbia Law School


The Constitution envisioned the exclusive rights of authors as a means to achieve the progress of knowledge. But the relationship of copyright to new technologies that exploit copyrighted works is often perceived to pit copyright against progress. As we tend to perceive progress as both inexorable and good, it would follow that if copyright is seen to conflict with the progress of technology, then the exclusive rights of authors should yield to the greater good of broader public dissemination of works of authorship. Recent legislation and caselaw have instead enhanced copyright owner control over new technologies of dissemination. Does this mean that our copyright laws are moving in the wrong direction? This article suggests that the relationship of copyright and technology is more nuanced than it might first appear. History shows that when copyright owners seek to eliminate a new kind of dissemination, and when courts do not deem that dissemination harmful to copyright owners, courts decline to find infringement. But, when copyright owners seek to participate in and be paid for the new modes of exploitation, the courts, and Congress, appear more favorable to the proposition that when the new market not merely supplements but also rivals prior markets, copyright owners should control that new market. With respect to current, Internet-related technologies, both courts and Congress seem to focus more on the role of copyright control in developing potential new markets than on the harm a lack of control would bring to old ones. This supportive approach derives from a perception that the unlicensed (and often unpaid) distribution of works over the Internet competes unfairly with the copyright owner's ability to avail itself of new markets for digital communication of works, and that this competition will ultimately lead to less rather than more public availability of works of authorship. But, even assuming that copyright owners can exercise effective control, is this power misplaced if it primarily benefits industrial-strength copyright owners, as opposed to authors themselves? The current debate over copyright control focuses on perceived or potential overreaching by powerful intermediaries; the prospects for authors most often are overlooked. Greater author control not only enhances the moral appeal of the exercise of copyright, it also may offer the public an increased quantity and variety of works of authorship, as authors whom the traditional intermediary-controlled distribution system may have excluded now may avail themselves of digital media and accompanying copyright controls directly to propose to the public (and be compensated for) their creations.