Many copyright scholars refer to England’s Statute of Anne (1710) as the “first authors’ copyright law,” but I quarrel with that summary. In that year, and for many decades to follow, English “rights” for authors were too intertwined with the Crown’s authority to sanction publication of works for us to think of the Statute of Anne as affirming copyright rights as we understand them today. Although the administrative mechanisms of the Statute of Anne did inform the first U.S. Copyright Act of 1790, the “democratization” of authorship, which tech companies like to claim as incompatible with copyright law, was baked into American copyright as part of a novel Constitution expressing fundamental rights in a context to which no other nation on Earth could claim precedent.
Article I, Section 8, Paragraph 8—the progress clause—is a declaration of hope, to echo a sentiment of Elizabeth Wurtzel’s. While most of the roughly three-million Americans were farmers with little formal education, the progress clause (or IP clause) expressed an ambition that America would eventually produce its own literature, scholarship, and invention. But significant distinctions between the new U.S. and England (and other parts of Europe) established American copyright law as egalitarian and democratic.
First, the government was not granted authority by the Constitution to sanction or deny publication. Second, the speech, press, and establishment clause exerted considerable force upholding the author’s right to express himself. And finally, the European tradition of art and science patronage by the nobility could not become dominant in either the economic or political composition of the young nation. For better or worse, even with its imperfections, professional authorship in the U.S. would be subject to the democracy of the market, and the copyright rights vested in the individual author were, and remain, the sole basis for a fair-trade relationship with that market.
Enter Big Tech and their big bullshit word “democratization.” They love this term because, like so many in its bag of rhetorical tricks, it sounds progressive, egalitarian, and even anti-corporatist, which is funny coming from the most powerful oligarchs since Vanderbilt and Rockefeller. They even claim to have democratized democracy, and indeed, they may well have democratized it all the way to authoritarianism. So, when Big Tech says “democratization,” it is always a grift, but it is still worth understanding how the rhetorical meaning has shifted in reference to authorship and creative work.
Distribution, Derivatives, & Data
Until generative AI changed the dialog in the last few years, the claim that “democratization” was antithetical to copyright tended to focus on attacking distribution rights or the derivative works right. Distribution rights, according to Big Tech, were only administered by “rent-seeking gatekeepers,” thereby rationalizing mass piracy followed by the arrogation of distribution to streaming platforms as new intermediaries. The result was platforms “democratizing” far more revenue out of creators’ pockets than the allegedly outdated models.
The other rhetorical use of “democratization” tended to focus on the alleged injustice of the copyright right of the author to prepare (or authorize) derivative works. This battle was fought in public over the proposed cultural value of “remix,” a pet project of Lawrence Lessig, and which fostered a lot of assumptions and misstatements in the blogosphere about fair use doctrine. That battle was settled, at least as a matter of law, with the outcome in AWF v. Goldsmith, which rescued the derivative works right from being swallowed by overbroad application of fair use.
On a more subtle level, Silicon Valley advocates also argued that digital modes of production are inherently easier and cheaper (neither of which is necessarily true) and, thus, it was argued that digital tech both “democratizes” production and justifies rethinking legal protection of the works produced. Likewise, anti-copyright academics, on behalf of Big Tech, have argued that unprecedented data-driven market analysis lowers the risk of production, which, again, supposedly demands rethinking the purpose and application of copyright law.
These and other variations on the theme that tech “democratizes” now coalesce and mutate around the argument that GAI is important because it “enables everyone to be a creator.” Hence, “gatekeeper” intermediaries like record labels are no longer the only “barriers to progress” because now, the professional creator who spent years perfecting her craft is accused of elitism for trying to protect the exclusivity of her art. This argument is absurd on its face because, of course, typing a few prompts into Suno to produce a guitar riff ain’t gonna make you Mark Knopfler. And in this sense, GAI is to creativity as the “democratization of information” is to expertise. Indeed, everyone using Midjourney can be a visual artist the same way that everyone using Google search can be an epidemiologist.
It is notable that “democratization” is the same con game, whether the subject is creative work or information because the constitutional purpose of copyright law was established to “promote science.” This is not to say that the Framers intended to exclude fiction or poetry or fine art from copyright law, but by any interpretation of the word “science” from the period, it is fair to say that the Framers hoped later generations of Americans would be creative and intelligent. And, yes, it was imagined and hoped that creative and intellectual contributions might one day come from any citizen. That was “democratization” circa 1790 whereas Big Tech’s application of that word, a euphemism for exploitation, has not been wholly beneficial for either democracy or intelligence or creativity.
