COPYRIGHT AND A DEMOCRATIC CIVIL-SOCIETY

Digital technology threatens to upset copyright law's delicate balance between author incentive and public access by making possible both wi despread copying of authors' expression and unprecedented provider con trol over user access. This development has sparked a bitter debate ov er what should be copyright's purpose and scope as we enter the digita l age. Professor Netanel first critiques the positions of leading part icipants in that debate. The ''neoclassicist'' position views copyrigh t as a mechanism for the formation and operation of efficient markets in existing expressive works. It would accord copyright owners with br oad, clearly defined, and exclusive rights of control over authors' ex pression, and, as a result, argues Professor Netanel, would unduly sti fle expressive diversity and constrain public access. On the other han d, he maintains, various ''minimalist'' approaches would significantly undermine copyright's support for the creation and dissemination of e xpression in the digital network environment, largely because they tak e inadequate account of the market upheaval that will accompany large- scale digital distribution of pictures, sound, and text. Professor Net anel presents a conceptual framework that stands in opposition to both the expansionism of neoclassicist economics and the minimalism of som e copyright expansion critics. His framework emphasizes that copyright is, in essence, a state measure that uses market institutions to enha nce the democratic character of civil society. In supporting a market for authors' works, Professor Netanel contends, copyright serves two d emocracy-enhancing functions: it provides an incentive for creative ex pression on a wide array of political, social, and aesthetic issues; a nd it supports a sector of creative and communicative activity that is relatively free from reliance on state subsidy and elite patronage. T he nature and scope of copyright protection, he argues, must be tailor ed to further these goals. Professor Netanel concludes by comparing li kely doctrinal outcomes of the neoclassicist, minimalist, and democrat ic approaches in four areas in which the expansion of copyright owner prerogatives have particularly troublesome implications for the digita l network environment: the lengthening of duration of copyright protec tion; the extension of copyright to personal uses; the extension of co pyright to transformative uses; and the displacement of copyright by c ontract.