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Published online by Cambridge University Press: 20 July 2015
The article is a Critical Notice of C. Edwin Baker’s Media, Markets, and Democracy (Cambridge UP: 2002).
* Cambridge University Press, 2002. ISBN 0-521-80435-3. All page references in the text are to pages in this book.
1. Two landmark cases in this context are the United States Supreme Court’s decisions in Associated Press v. United States, 326 U.S. 1(1945) at 20, 28; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) at 388-390; also Meiklejohn, Alexander, Free Speech and its Relation to Self-Government (New York: Harper Brothers, 1948)Google Scholar.
2. Beginning with the seminal report: Leigh, Robert D., ed., A Free and Responsible Press, a General Report on Mass Communication: Newspapers, Radio, Motion Pictures, Magazines, and Books By the Commission on Freedom of the Press (Chicago, IL: The University of Chicago Press, 1947) at 30–68 Google Scholar. See also Fiss, Owen M., “Free Speech and Social Structure” (1986) 71 Iowa L. Rev. 1405 Google Scholar.
3. Although, along side, as discussed in section 3 infra, one of the most compelling parts in Baker’s book is his proposal for a “cocktail policy”, which blends together the many different kinds of media institutions, both market oriented and public, in a manner that enables each and every type of media institution to cover and supplement “check and balance”, the drawbacks of the others.
4. As Baker demonstrates through out Media, Markets, and Democracy, the information and content that are gathered, produced, and effectively disseminated by media intermediaries, as well as the discourses, will formation, meaning making and preferences setting processes, which are conducted, filtered and then amplified by media intermediaries, are all crucial elements of our human lives. Hence, media intermediaries with a discretionary power regarding the contents that they deliver, are perceived as more than mere communication platforms and conduits. Rather they are regarded as social institutions, which embody unique public attributes. They are centers of private discretionary communicative power that has an influence on most aspects of our lives.
5. See Sunstein, Cass R., Democracy and the Problem of Free Speech (New York: The Free Press, 1993) at 53–92 Google Scholar.
6. See section 3 infra.
7. The book’s chapters on international trade are not dealt with in this Critical Notice. For a review essay of these chapters see Barron, Jerome A., “Globalism and National Media Policies in the United States and Canada: A Critique of C. Edwin Baker’s Media, Markets, and Democracy” (2002) 27 Brooklyn J. Int’l. L. 971 Google Scholar.
8. Supra note 5 at 17-53.
9. As the legacy of legal realism has taught us, a “hands off” policy of deregulated media markets is no less a governmental intervention in the form of supporting the private regulation of speech by corporate media—especially through the recognition and enforcement of background property rights and regulatory regimes that nurture and establish the private powers of a market oriented media system (see pp.119-20). In other words, the government is always involved in the regulation of speech and the allocation of effective speech powers, even when it does so by a “non-intervention” policy that supports any current property-regulatory regime. Nevertheless, this conceptual liberation is likewise relevant in the context of governmental positive subsidies and structural state regulation of the media. Here, also, any governmental affirmative policy would have both direct and indirect implications on the allocation of effective speech powers between the various participants of the communicative realm.
10. See also Rubenfeld, Jed, “The Freedom of Imagination: Copyright’s Constitutionality” (2002) 112 Yale L.J. 1 at 37–43 Google Scholar; Balkin, Jack M., “Populism and Progressivism as Constitutional Categories” (1995) 104 Yale L.J. 1935 Google Scholar.
11. See Post, Robert, “Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public Discourse” (1993) 64 U. Colo. L. Rev. 1109 Google Scholar. Baker’s approach, which supports state regulation of media markets, also raises the general debate between the “collectivist” approach of freedom of speech and an individual autonomy based approach. The collectivist approach, which is identified with Fiss (supra note 2) and Sunstein (supra note 5), understands freedom of speech as a value, which concentrates on the process of public deliberation, as opposed to an individual’s autonomous personal right of expression. Baker’s general approach has much in common with the collectivist approach, although this is an issue that I do not focus on within this critical notice. See also Fried, Charles, “The New First Amendment Jurisprudence: A Threat to Liberty” (1992) 59 U. Chi. L. Rev. 225 Google Scholar.
12. See Fiss, Owen M., “State Activism and State Censorship” (1991) 100 Yale L.J. 2087 at 2099–2103 Google Scholar. Fiss objects to using a meritocratic criterion such as artistic excellence in allocating governmental art support funds because of its discriminatory and silencing potential. Instead, Fiss offers an “effects criterion”, which is intended to examine the effect of the speech activity on the public discourse and its contribution to an “uninhibited, robust, and wide open” public discourse. Such a proposal might help in locating unjustified governmental refusals for grants, which use the artistic merit criterion as a cover-up for content-based discrimination. Nevertheless, as a positive guideline for allocating a limited amount of governmental funds support, Fiss’ criterion offers no substantial measures that could be relied on.
13. E.g., in the context of unregulated advertised supported media, Baker correctly explains why such a realm undermines, and hence “suppresses” the activity of media which is not attractive to advertisers (pp. 182-83).
14. See Chafee, Zechariah Jr., Government and Mass Communications (Chicago, IL: The University of Chicago Press, 1947) at 476 Google Scholar.
15. Ibid.
16. See Curran, James, “Mass Media and Democracy Revisited” in Curran, James & Gurevitch, Michael, eds., Mass Media and Society, 2nd ed. (New York: St. Martin’s Press, 1996) at 81 Google Scholar.
17. Elitist democracy, liberal pluralism or interest-group democracy, republican democracy, and complex democracy.
18. For similar approaches see Bezanson, Randall P., “Institutional Speech” (1995) 80 Iowa L. Rev. 735 at 806–15 Google Scholar; Lichtenberg, Judith, “Foundations and Limits of Freedom of the Press” in Lichtenberg, Judith, ed., Democracy and Mass Media (Cambridge: Cambridge University Press, 1990) 102 at 104 CrossRefGoogle Scholar.
19. Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 255–61 Google Scholar.
20. See Innis, Harold A., “Concept of Monopoly and Civilization” (1954) 3 Explorations Google Scholar 89.
21. See Lichtenberg, , supra note 18 at 120–24 Google Scholar.
22. See A Free and Responsible Press, supra note 2 at 81.
23. See Edwin Baker, C., “Media Concentration: Giving Up on Democracy” (2002) 54 Florida L. Rev. 839 at 843–55 Google Scholar.
24. Ibid.
25. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994); Turner Broad. Sys., Inc. v. FCC, 520U.S. 180 (1997).
26. Ibid.
27. Copyright’s subject matter—intangible works in general, and media products in particular—are public goods since they are both non-excludable and non-rivalrous. Because of the abstract nature of intangible works, without the support of any legal protection, once such works are publicly exposed, their creator cannot effectively exclude others from gaining access to the works and utilizing them freely; consequently with our rewarding the creator for the efforts and resources he had invested in the production of such works. This prospective problem of “free riding” reduces the incentive for investing efforts and resources in the production and dissemination of intangible works. Copyright overcomes this problem by granting a legal right of exclusiveness that enables the copyright owner to exclude others from using the work without his authorization, and thus collect fees for the use of the intangible work and secure a return on his investment. See Landes, William M. & Posner, Richard A., “An Economic Analysis of Copyright Law” (1989) 18 J. Legal Stud. 325 at 326 Google Scholar.
28. Which is, legally speaking, an intellectual property right that is separate from copyright law.
29. See Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 (1985) at 558.
30. Even though, practically, the opposite scenario is more predictable. Copyright legislation has long been notorious for embodying successful industry rent-seeking as an area in which a number of small but powerful interest groups from such industries as entertainment, communications and software have shaped, adjusted and reshaped copyright legislation according to their needs. See generally, Sterk, Stewart E., “Rhetoric and Reality in Copyright Law” (1996) 94 Mich. L. Rev. 1197 at 1244–46 Google Scholar; Netanel, Neil, “Locating Copyright Within the First Amendment Skein” (2001) 54 Stan. L. Rev. 1, 67–69 Google Scholar. For an illuminating analysis and description of such processes in the context of the recent amendments to the Federal Copyright Law in the United States, see Litman, Jessica, Digital Copyright (Buffalo, NY: Prometheus Books, 2001)Google Scholar.
31. 17 USC 106(2).
32. The full definition of a derivative work is: “A work based upon one or more preexisting works, such as a translation, musical arrangement dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship is a ‘derivative work’” (17 USC 101).
33. For example, a single comic character like Batman is a vehicle for the production and sale by subsidiary corporation or licenses of a wide range of entertainment channels and consumer products (novelizations, music soundtracks, music videos, video cassettes, feature films, games, clothes) and channels of distribution (theatrical exhibition, pay-cable, pay-per-view, network television services, etc.).
34. As a consequence, independent creators and producers must now spread their production costs over fewer consumers, which means higher prices that capture a decreased proportion of consumer surplus. Thus, corporate media could use its increased revenues from ancillary and derivative markets for marketing and promotional expenses which both raise rival costs and deepen corporate media’s influence on audiences’ cultural preferences and tastes. The result is decreased profitability and competitive ability of independent creators and producers.
35. See Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as amended at 17 USC 108, 203(a)(2),301(c), 302, 303, 304 (2000)). The constitutionality of the statute has been challenged unsuccessfully in the District Court and then appealed to the Supreme Court which granted permission to hear the case. The case is now pending a decision (see Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001); Eldred v. Ashcroft, No. 01-618 (U.S. oral argument Oct. 9, 2002).
36. See Netanel, supra note 30.
37. See Benkler, Yochai, “Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain” (1999) 74 N.Y.U. L. Rev. 354 Google Scholar.
38. Most of the dominant Internet service providers are acting also as providers of content and communicative platforms.
39. A weblog is a website that tracks headlines and articles from other websites. Weblogs are frequently maintained by volunteers and are typically devoted to a specific audience or topic. Weblogs are often-updated sites that point to articles elsewhere on the web, often with comments, and to on-site articles.
40. Collaborative media is an emerging phenomenon on the Internet. Also called “peer-to-peer journalism” (P2PJ), “community weblog”, or “collaborative news and discussion sites”, this phenomenon comprehends websites devoted to peer-production of “news” and/or “commentaries” about news. They basically create and structure virtual communities that collaborate in the production of information about the world. Some of them are focused exclusively on the commentaries about “news” posted in other websites. Others produce their own “news”—initial utterances—in order to begin threads of discussion. Some are devoted to specific subject areas, such as technology or politics, while others cover a broad range of subjects and interests.
41. See generally, Benkler, Yochai, “Coase’s Penguin, or Linux and The Nature of the Firm” (2003) 112 Yale L.J. 369 Google Scholar.