Not long after digital media and the Internet took hold a generation ago, technology companies became entertainment companies, too. Alphabet, Amazon, Apple, Meta, Microsoft, Netflix, Spotify, and a few others now mediate the relationship that consumers have with creative works. The increased power of these technological intermediaries puts copyright aggregators—traditional entertainment companies like book publishers, television and movie studios, and record labels—in a different economic position. Before, they could largely set prices, shape product offerings, and dictate what would be available to consumers. Now, they must negotiate over those things. Meanwhile, the individual creators whose works are being delivered to consumers face a more dire problem. The copyright aggregators they contract with to secure royalties and artistic control no longer have such a free hand—and the creators end up with less of everything. The well-known and growing concerns about creators’ plight in the contemporary economy have their roots in this new economic dynamic.
Previous accounts of how copyright works were valid for their time, but the digital era presents a fundamentally different situation that requires new thinking to inform law and policy. The new economic and cultural conditions leave copyright more constrained in its attempt to deliver some measure of incentives, rewards, and artistic control to creators. Some of the traditional policy goals that justify copyright are being well served for some groups: consumers, technology companies, and even the traditional entertainment companies, which own valuable catalogs of works and franchise-worthy intellectual property. But policy goals that society should hold for creators are not being met. This is the case for the traditional goals associated with copyright as well as a broader set of goals that attend to the other diverse needs of creators. While still important and worthwhile, copyright is limited in its effectiveness for creators, and expanding or reforming copyright will solve little. I propose that several alternative policies hold more promise, including health care, labor law, anti-concentration law, data access, and state and local arts policy.
* Professor of Law, Northwestern Pritzker School of Law. A.B., Princeton University; J.D., Ph.D. (Economics), University of Michigan. I am grateful to Megan Chun and the editors of the University of Illinois Law Review for excellent research assistance. Thanks also to Erin Delaney, Michael Good-year, Rachel Landy, Jacob Noti-Victor, David Schwartz, Jessica Silbey, Jenny Toomey, the students of the Cardozo’s Spring 2024 IP and Information Law Colloquium, and the participants in the December 2024 Chicagoland IP Workshop at Chicago-Kent College of Law for helpful comments and suggestions. All errors are my responsibility.
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