Sean M. O'Connor, Creators, Innovators, and Appropriation Mechanisms, 22 Geo. Mason L. Rev. 973 (2015), https://digitalcommons.law.uw.edu/faculty-articles/197
George Mason Law Review
Now that Congress’s House Judiciary Committee has undertaken a review of current copyright law, and the Register of Copyrights, Maria Pallante, has called for the “Next Great Copyright Act,” sides are being drawn by various interest groups. Perhaps following the pitting of information technology firms against bio-chem and pharma firms in the patent reform battles leading to the America Invents Act, some interest groups want to divide the copyright reform debates into “innovators” and “creators.” Much of this seems driven by large tech firms such as Google, along with advocacy groups such as the Electronic Frontier Foundation (“EFF”) who are aligned with them, as they push for copyright reform. The narrative being developed is that tech firms are simply trying to create the innovative technologies and digital platforms of the future, while being dragged down by behemoth content owners who are trying to thwart this progress to maintain the status quo of an analog content world that no longer exists.
But this simple narrative is quite misleading and harmful to the kind of rational, objective debate necessary to accommodate the newest forms of digital and social media in the copyright ecosystem. Great creators are innovators and great innovators are creators. The content companies, including large legacy movie and music studios, have developed impressive new digital technologies. And digital technology and platform distribution firms are increasingly creating new content.
In the middle, industries such as video gaming have always existed at the crossroads of developing cutting edge technology and content. What society is really witnessing is an explosion of creative innovation across a range of fields. But no matter what the field or form, creative innovation relies on some mode of appropriation.
Without it, anyone can copy or use the innovation without payment or attribution to the original producer. In such a world, it seems likely that few will invest significant time or resources into fully developing and implementing their ideas for a particular creative innovation. They will still have the ideas, and they may be willing to implement them in some inexpensive, fast manner. While that may work for some kinds of creative innovation, it does not work for many others.
Copyright is only one appropriation mechanism. There are many others, including the areas of intellectual property (“IP”) outside of copyright. A problem that underlies the emerging innovator-creator copyright debates is that creative innovators naturally want their inputs to be “free” (in both the cost and repurposing senses), while they need their outputs to be appropriable if they want to receive a return on investment for their innovations. As argued below, this appears to have led some tech firms and their advocates to engage in a diversionary sleight of hand in which they seek to minimize the appropriation mechanisms of those providing their inputs, while hiding or downplaying robust efforts to appropriate their outputs.
This Essay explores the current state of this phenomenon, especially with regard to digital and social media. It argues that policymakers need to focus on this broader perspective and not allow some interested players to narrow the debate to the appropriation mechanisms of only one stakeholder group in creative innovation ecosystems.