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In this article, I will explore the concept of control and the meaning of exclusive rights in the constitutional text, the pre-1976 Copyright Act regime, and the 1976 Act. I then consider the new technology cases from piano rolls through videotaperecorders, as well as Congress' responses to new technological means of exploitation. I make two submissions. First, I conclude 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, even though the legal and economic analysis that support those determinations often seems strained, not to say disingenuous. Second, this does not always mean, however, that courts refuse protection or that Congress imposes a compulsory license, each time copyright encounters new technology. Rather, when copyright owners seek to exploit the new modes of communication, the courts and Congress appear more favorable. In these circumstances, they embrace the propositions not only that copyright owners should get something for the new exploitation, but, more importantly, that when the new market not merely supplements but rivals prior markets, copyright owners should control that new market, and therefore should be able to charge market prices.

I will conclude with a somewhat different consideration: Even assuming that copyright doctrine supports the exercise of control over new media of dissemination, 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-dominated distribution system have excluded now may avail themselves of digital media and accompanying copyright controls to propose their creations directly to the public (and be compensated for them).


Intellectual Property Law | Law