Neil Netanel in his paper ‘Copyright and a Democratic Civil Society’, characterises the three main philosophical positions to copyright law- neoclassicism, minimalism and democratic theory.
Neoclassical copyright theory seeks to maximise control over the use of works and produce maximum profits. Arguments against this form of copyright regulation tend to look to the purpose of copyright law in providing a mechanism for social progress and democracy which requires a more flexible approach for the public access of works. Arguably this is the form of copyright regulation currently employed in countries such as the United States and Australia. It encourages monopoly control and dominance by major record labels and requires litigation to support a business model that is the dominant consideration rather than the quality of culture produced.
Minimalism (or Utopian copyright theory) on the other hand refers to the philosophical position in which artists are given little property rights to their works but rather much greater freedom is afforded to the public to use works without compensation. Perhaps best illustrated by much of the activity currently underway on file sharing networks, such a position fails to provide the mechanism for a reasonable return of funds to artists and therefore fails to support a democratic and civil society. Artists capable of the best expression are not adequately rewarded for their creativity lowering both the standard and frequency of cultural production.
Democratic theory is the central position between these two and Netanel characterises this as the optimum environment for creativity and democracy. Artists enjoy reasonable returns for their creativity whilst ensuring adequate access by the public, therefore maximising the opportunities for the educative powers of culture and the ability for citizens to be aware of and participate in politics. The collective licensing mechanism proposed for file sharing networks is one such example of a form of copyright regulation which seeks to enhance access and provide reasonable support for artists.
In the past the digital music environment could be seen as something of a conflict of extremes – record labels and major media corporations have taken a strictly neoclassicist approach, file sharers and file sharing software developers adopted a minimalist approach with independent artists left to struggle to match the conditions of both of these.
In more recent times however steps, albeit small ones, have been taken to move more toward the centre. The decision by the labels to remove DRM from CDs and to an increasing degree digital files, the development of new business models by independent artists demonstrating their ability to create some opportunities for themselves in a far less regulated environment as well as the increasing discussion relating to the collective licensing mechanisms are all factors indicating the shifting sentiments of the participants in the digital music environment. This all seems encouraging from the perspective of artists and the public until one then refers to the overlapping attention currently being directed to internet wide filtering of copyright material and the increasing pressure on ISPs to take a greater role in policing and enforcing activities on their networks.
In these changing times it can be difficult to say with absolute certainty that the extreme positions of the past remain but it is far from certain that the industry as a whole is moving directly to a democratic paradigm. Small steps in multiple but conflicting directions indicate that the environment is far from settled.
Further Reading
Neil Netanel, Copyright and a Democratic Civil Society, 106 Yale Law Journal 283 (1996)
<http://www.history.ox.ac.uk/ecohist/readings/ip/netanel.htm> at 22 April 2008
Digital Music News, MP3 Fever Spreads: Tesco Latest to Dump DRM (16 April 2008) <http://www.digitalmusicnews.com/stories/041508tesco> at 17 April 2008
TechDirt, Wal-Mart Ditches DRM... And Lots Of Major Label Music With It (8 April 2008) <http://www.techdirt.com/articles/20080408/003857784.shtml> at 13 April 2008
Digital Music News, Wal-Mart Reaffirms Commitment to MP3s; Standoff Continues (7 April 2008) <http://www.digitalmusicnews.com/stories/040608walmart> at 8 April 2008
Digital Music News, The DRM-Free Drag... Why a Broader Rollout Remains Elusive (2 April 2008) <http://www.digitalmusicnews.com/stories/040208drm/> at 8 April 2008
Digital Music News, Marvelous Result: Reznor Disciple Finds $300,000 (14 April 2008) <http://www.digitalmusicnews.com/stories/041308niggy> at 17 April 2008
TechDirt, Another 'Free' Business Model Experiment (28 March 2008)<http://www.techdirt.com/articles/20080321/183748624.shtml> at 30 March 2008
ChicagoTribune, Music biz looks at giving fans all the songs they want in exchange for broadband access fee (20 March 2008) <http://leisureblogs.chicagotribune.com/turn_it_up/2008/03/the-latest-plan.html> at 27 March 2008
Digital Music News, Dolly Goes DIY: Parton Self-Financing Offers Latest Case Study (24 March 2008) <http://www.digitalmusicnews.com/stories/032308dolly> at 26 March 2008
The Technium, 1,000 True Fans (4 March 2008) <http://www.kk.org/thetechnium/archives/2008/03/1000_true_fans.php> at 23 March 2008
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