Evolution and equilibrium: An introduction

It is axiomatic to suggest that copyright and its utility in the digital environment are important issues. There is much debate on the role and appropriate parameters of copyright (how should copyright works be available and protected online and how should fair uses work in the online environment?) especially where the availability of works is more international than ever before. The importance of the issues and the difficulties have resulted in the debate becoming significantly polarised, and those at the poles are frequently uncompromising. Public choice theory explains some of the changes as existing players try to use regulatory mechanisms, including copyright, to preserve existing business models, and others use the same levers to disrupt those same models, and create their own – until they too become entrenched and start to defend their acquis At bottom, the debates often oppose two types of intermediaries; namely, on the one hand, those who have typically dealt with creators by acquiring rights from them (publishers, film and record companies and a number of software developers) and who developed business models as ‘right-holders’, and, on the other hand, intermediaries who use the work product of creators (which is often referred to a ’content’ in that context) and who developed business models linked to advertising or fair uses. The latter are either reluctant licensees or operating under some theory of copyright which absolves them of any obligation to pay creators. The related regulatory schemes vary from liability exemption as ‘conduit’ of content to fair use/fair dealing. As a result, there is a gap between law and practice at so many levels.