This week I’m revising a history of UCC Article 2B and UCITA. This has caused me to recall that just a decade ago, the great fear was that UCITA and digital rights management (DRM) would greatly enhance the power of publishers in the digital environment, and that fair use would cease to be an effective defense (or right, depending on one’s perspective) under U.S. copyright law. Because that legislation and copy protection technology promised to safeguard copyright owners’ property rights in literary works, the economic value of literary works in the digital environment seemed secure.
A decade later: UCITA was enacted in only 2 states (Maryland and Virginia); DRM is widely applied to literary works, but non-DRM copies of literary works proliferate; the U.S. Register of Copyrights has announced that, in her view, unauthorized digitization of entire copyrighted literary works, for the purpose of selling advertising against the digitized copies or portions of them, qualifies as fair use; accordingly, since the Register’s view amounts to a rejection of significant aspects of the property rights policies underlying the 1976 Copyright Act with respect to literary works, the economic value of literary works seems seriously threatened; and the strength of publishers appears substantially diminished. Today, fair use seems about to swallow up copyright owners’ exclusive rights in literary works. A startling turnaround in the course of ten years.
I predict that litigants will persuade federal courts to take Register Peters’s view of fair use and, slowly and steadily over time, extend it further and further, so that copyright protection for literary works becomes meaningless. And digitizers stand to profit not only from overt use of unauthorized copies, but as Joseph Esposito rightly points out, also from secret uses, such as data mining, that cannot be detected by copyright owners. The declining economic value of copyrighted literary works likely reflects the loss of revenue caused by both overt and covert uses of unauthorized digital copies.
As a result, say the wise publishing industry veterans of whose views I’m aware, we are preparing for a new publishing environment, in which authors and publishers attempt to generate revenue streams based, not on their property rights in the information they create or distribute (since those rights will have been effectively extinguished), but on services they provide in conjunction with that information. So mainstream publishing declines into a non-credentialed services industry, with enormous numbers of providers, engaged in fierce and unrelenting competition, with a predictable impact on the author’s ability to recoup his or her upfront cost of creating a literary work.
Judge Posner & Professor Landes long ago predicted what kinds of literary works were likely to dominate the market in the (effective) absence of copyright: “There would be increased incentives to create faddish, ephemeral, and otherwise transitory works because the gains from being first in the market for such works would be likely to exceed the losses from absence of copyright protection.” William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Leg. Stud. 325, 332 (1989). That prediction was made in a predominantly print world; I’m very interested to see how it stands up in the digital environment.