Copy Fights: The Future of Intellectual Property in the Information Age

When we examine the question whether copyright needs redesign to stretch it around digital technology, we can look at the issues from a number of different vantage points. First, there is the viewpoint of current copyright stakeholders: today's market leaders in copyrightaffected industries. Their businesses are grounded on current copyright practice; their income streams rely on current copyright rules. Most of them would prefer that the new copyright rules for new copyright-affecting technologies be designed to enable current stakeholders to retain their dominance in the marketplace. ¹

One way to do that is to make the new rules as much like the old rules as possible. Current copyright holders and the industries they do business with are already set up to operate under those rules: they have form agreements and licensing agencies and customary royalties in place. There are other advantages in using old rules: If we treat the hypertext version of the New York Times as if it were a print newspaper, then we have about 200 years worth of rules to tell us how to handle it. We can avoid the problems that accompany writing new rules, or teaching them to the people (copyright lawyers, judges, newspaper publishers) who need to learn them.

Using old rules, however, has the obvious disadvantage that the rules will not necessarily fit the current situation very well. Where the new sorts of works behave differently from the old sorts of works, we need to figure out some sort of fix. Here's a simple example: Newsstands turn out to be an effective way of marketing newspapers and magazines in part because it is difficult as a practical matter to make and distribute additional copies of newspapers and magazines that one buys from the newsstand. If one “buys” a newspaper by downloading it from the World Wide Web, on the other hand, it is pretty easy to make as many copies as one wants. The old rules, customs, and practices, therefore, will not work very well

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