Earning an income in our time often involves ownership of or control over creative assets. Employing the law and philosophy of economics, this illuminating book explores the legal controversies that emerge when authors, singers, filmmakers, and social media barons leverage their rights into major paydays. It explores how players in the entertainment and technology sectors articulate claims to an ever-increasing amount of copyright-protected media. It then analyzes efforts to reform copyright law, in the contexts of 1) increasing the rights of creators and sellers, and 2) allocating these rights after employment and labor disputes, constitutional challenges to intellectual property law, efforts to legalize online mashups and remixes, and changes to the amount of streaming royalties paid to actors and musicians. This work should be read by anyone interested in how copyright law–and its potential reform–shapes the ownership of ideas in the social media age.
Q. Why this book, and why now?
The governance of creativity, particularly on the Internet, remains controversial. The freedom to disrupt or to dissent is often pitted against regulation in the name of stability and sustained investment. The debate leads to many fascinating decisions in the intellectual property area. My book surveys some of the most famous recent disputes between the original creators of stories, technologies, performances, etc., and the ultimate owners, distributors, indexers, and remixers of their works. Each chapter tries to focus on a timely issue that could shape the future of a major technology or social media company, while being unsettled enough to generate questions worthy of different judicial approaches and ongoing political debate. The book applies economic and philosophical theories to topics, including the basic awarding of copyrights among several possible owners, the allowable degree of imitation in literature and art, the enforcement of copyrights and patents against social media giants, and the legality of the digital libraries of the future. Others have analyzed these topics before, but often not from the point of view of how changes in technology affect the balance of interests between creators and distributors or intermediaries. Where the freedom of speech, our conceptions of authorship, and evolving legal norms meet, there are opportunities to restore that balance, or to establish a new one.
Q. Who should read this book?
Anyone interested in the quest for universal search engines, which offer ubiquitous access to knowledge from connected devices, might be interested in how creators’ rights might pose a barrier to them. Students curious about the interplay between their privacy and the complex flows of money for content online might want to read it. Scholars conducting historical or economic analyses of how copyrights have expanded and contracted over the years might find useful insights in the book. Practitioners who represent content or technology industry players will hopefully find new and provocative stories in it that they can put to use in their professional lives.
Q. What is the most important takeaway you hope your readers gain from this book?
It is that while our copyright and patent laws contain an underlying economic rationality, there are many ways in which they do not serve creative individuals well, by shortchanging them as earners while censoring them as uninhibited speakers. The book looks forward to an age in which an unprecedented abundance of opportunities to learn and create expressive works does not undermine the survival of creators as laborers for pay. The last decade or so of copyright and patent reform has seemingly flowed from the assumption that sharing clips and reusing content will destroy creators as a class. The book takes this thesis seriously while assembling contrary evidence and critically approaching the claim that reducing the role of what some have called “copyright conglomerates” will result in less creativity overall.
Q. How did you decide on the title and cover art?
The title is intended to call to mind an epic contest that will shape the way that people write, paint, sing, and perform in the future. Will the relationships governing the commissioning and distribution of original expressions–the building of creative economies–reflect a division of labor and stratified roles, or an uninterrupted relationship in which personalities and wisdom are exchanged? The cover art reflects the contrast between the performer and the viewer or consumer of entertainment. What happens to all those concert videos from smartphones–will they be archived and flow freely from person to person, or locked down with technological filters and various civil and criminal regulations? The question comes up during the ongoing debate about the obligation that social media platforms will have to use their best efforts to prevent the unauthorized use of content in Europe, among other questions relating to user surveillance and privacy, the freedom of expression and proportionality, digital trade and geoblocking, and the extraterritoriality of laws. The photograph, to me, also calls to mind another tension–between the performer as a romantic creator, answerable to no one, and as a reenactor of a genre or even a sheet of instructions authored by somebody else entirely, a laborer in a creative industry.
Hannibal Travis teaches and conducts research in the fields of cyberlaw, intellectual property, antitrust, international and comparative law, and human rights. He joined FIU after several years practicing intellectual property and Internet law at O’Melveny & Myers in San Francisco, California, and at Debevoise & Plimpton in New York.