Clark Asay, ‘Rethinking Copyright Harmonization’

For nearly half a century, the United States has been one of the main proponents of harmonizing the world’s copyright laws. To that end, the US government has worked diligently to persuade (and, in some cases, bully) most of the world’s countries to adopt copyright standards that resemble those found in the United States. The primary reason for this push to harmonize the world’s copyright laws is simple: the United States has long been a net exporter of copyrighted works, and so the US government has sought to ensure that other countries provide US authors with the same economic rights those authors enjoy at home.

But that rather simple calculus in favor of copyright harmonization has changed. Today, the US government must also take into account the interests of its technology sector in determining its positions on both domestic and international copyright law efforts. This is because technology providers are also a significant export of the United States, and their copyright interests do not always align with those of large copyright owners. For instance, many of those technology companies, including Google and Twitter, use copyrighted works as a vital part of providing their technological services, including by way of exhibiting copyrighted content at the direction of their users, in response to user searches, or as part of services such as Google News. Consequently, continuing to ratchet up worldwide copyright standards through international harmonization may often negatively affect the interests of such companies by restricting their ability to use copyrighted works liberally within their services. In short, with these new technological entrants, the political economy of copyright harmonization has significantly changed, and those changes are poised to exert considerable influence on copyright’s global future.

In this Article, I map out the key players in copyright’s new political economy, and I grapple with how their often-divergent interests are likely to affect global copyright law and policy making going forward. I then examine the European Union’s newly minted Copyright Directive as an example of these divergent forces at play within the United States, Europe, and elsewhere. Finally, I assess whether the altered political economy of copyright harmonization is a positive or negative development.

Asay, Clark, Rethinking Copyright Harmonization, Indiana Law Journal: volume 96: issue 4, article 2 (2021).

First posted 2021-10-15 09:00:33

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