• June 25, 2015
  • 18 Stan. Tech. L. Rev. 189
Clark D. Asay

Copyright was initially conceptualized as a means to free creative parties from dependency on public and private patrons such as monarchs, churches, and well-to-do private citizens. By achieving independence for creative parties, the theory ran, copyright led to greater production of a more diverse set of creative works.

This lingering conception of copyright is both inaccurate and harmful. It is inaccurate because, in today’s world, creative parties are increasingly dependent upon “Technological Patronage” from the likes of Google, Amazon, Apple, and others despite copyright protections. Thus, rather than being alternatives or adversaries, copyright and Technological Patronage are increasingly interdependent facilitators of creative and innovative activity. It is harmful because, by overemphasizing copyright’s role in spurring creative activity, the traditional view of copyright tends to polarize debates about how best to address key copyright questions.

Instead, copyright is more accurately understood as an interdependent part of a broader creative system that facilitates both creative and innovative activities. This Article reviews several examples of the interdependence of copyright and technology and, in addition, by examining how technology companies are solving some of copyright law’s most pressing issues, highlights broad interdependencies between the two fields.

Overall, this interdependent view of copyright provides a better framework for assessing the role of copyright, its technological complements, and proposed solutions to issues that relate to both creative and innovative activities. This Article suggests that copyright and patent laws would be well served by doctrinal adjustments which reflect these interdependencies. Indeed, the Constitutional provision authorizing intellectual property laws arguably supports such efforts.

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