Copyright in a Digital Ecosystem

Abstract

The rights of users of copyrighted materials are growing in significance. This is the result of fundamental changes in the creative ecosystem that pull in opposite directions: on the one hand, the flourishing of user-generated content places individual users at the forefront of creative processes, strengthening the need to facilitate unlicensed use of creative materials. On the other hand, digital distribution, cloud computing, and mobile Internet strengthen restrictions on the freedom of users to access, experience, transform, and share creative materials. These changes necessitate a user-rights approach to copyright law. Users’ interests are often examined through the prism of Limitations and Exceptions (L&E) to copyright. However, this narrow view overlooks the users’ critical role in serving the goals of copyright law and may therefore ultimately lead to inefficient outcomes. A user-rights approach holds that permissible uses under copyright law should be articulated and treated as rights. It deviates from the L&E approach at the theoretical level, with some potential doctrinal implications. At the theoretical level, this approach shifts the locus of copyright analysis from author’s rights to the creative process, emphasizing the role of users as partners in promoting copyright objectives. Rather than being “parasites” that benefit – unjustly – from limits on the just rewards of authors, users actively participate in promoting the creation, dissemination, and use of cultural works. A user-rights approach further suggests that to achieve its goals, copyright law should be drafted, interpreted, and applied in ways that consider the rights and duties of both users and authors. Permissible uses that serve the objectives of copyright law should therefore be defined as rights rather than as a legal defense. The purpose of this chapter is to offer a theoretical framework for developing a jurisprudence of user rights. It demonstrates how the recognition of the role of users in promoting the purpose of copyright law could change our perspective on the scope of copyright protection and what should be considered permissible use. The user-rights approach does not purport to offer a detailed prescription on the desirable level of unlicensed use. It does offer, however, a theoretical framework for deciding what should be the scope of permissible use in each particular case.

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