Academic journal article Texas Law Review

Two Problems with the Value of Participation in Democratic Theory and Copyright*

Academic journal article Texas Law Review

Two Problems with the Value of Participation in Democratic Theory and Copyright*

Article excerpt

I. Introduction

Among the theories used both to justify and to change substantive copyright doctrine is democratic theory. Democratic theorists seek to use copyright to bring society, individuals, or both closer to some articulated ideal, such as a well-functioning democracy of active and diverse individuals. Democratic theorists value participation-the active making of works of expression by individuals-in part because they believe it can help to achieve this ideal. Certain democratic theorists argue that we should relax or eliminate the control that creators have over derivative works made off of their originals because doing so would open up further opportunities for participation in the creation of expressive works, and thereby, contribute to the constitution of the populace as creative and active, for example.

However, there are two problems with the value of participation. First, the content of the value of participation, even if not viciously vague, does leave opportunities for further specification. Is participation as such good or only participation in certain discussions? Is any kind of participation desirable or only certain forms of participation, such as very original works? Second, the value of participation seems to mandate government action on the basis of a conception of the good, in violation of the neutrality thesis. Neutralists argue that it is inappropriate for the government to take coercive action that is designed to promote a view of the good. If government were to use copyright to promote greater participation by individuals in making expressive works, then this action may violate the neutrality thesis. Because at least some democratic theorists appear to be committed to the neutrality thesis,1 this tension should be addressed.

I argue that understanding the relationship between the value of autonomy and the value of participation helps to give further specification to the latter. I also argue that this further specified concept of participation does not violate the neutrality thesis, both because it does not qualify as a concept of the good and because its implementation does not involve coercion.

II. The First Problem with Participation: Specification

A. Democratic Theory in the Context of Copyright

1. The Basic Idea of Democratic Theory.-Neil Netanel's 1996 article is a prominent articulation of the democratic theory of copyright.2 He argues that copyright law should adopt a framework whereby "copyright is in essence a state measure that uses market institutions to enhance the democratic character of civil society."3 Copyright accomplishes this function by incentivizing creative expression and "support[ing] a sector of creative and communicative activity that is relatively free from reliance on state subsidy, elite patronage, and cultural hierarchy."4

In more general terms, democratic theorists seek to use copyright to bring society, individuals, or both closer to some normative ideal, which is to say, some conception of the "good society."5 Some base this idea on a particular conception of what democracy is.6 Others, such as Professor William Fisher, understand it in the more expansive terms of the "utopian society," characterized by creative and challenging employment, equality of resources, education, and state support of the arts.7 Democratic copyright theorists seek to use specific copyright doctrines to bring the world more into line with their normative prescriptions.8

For example, Professor Netanel uses the democratic paradigm to argue for a middle ground between the traditionally strong derivative works right and the wholesale abolition of that right: "[The democratic paradigm] would advocate varied treatment for different types of transformative uses in an effort to maintain author incentives without unduly suppressing secondary borrowing. From the democratic perspective, a broad derivative right poses an unacceptable burden on expressive diversity. …

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