The Free Content Illusion

Authors

Jonathan M. Barnett, University of Southern California, Gould School of Law

Abstract

Conventional scholarly wisdom tends to discount the importance of copyright as a tool for delivering remuneration to the artists that sustain the digital creative ecosystem or as an enabling mechanism that facilitates the licensing, distribution, and financing transactions that constitute the economic infrastructure of the media and entertainment industries. This position runs counter to the evolution of digital content markets, which have experienced renewed investment and growth concurrently with the development of technological tools that have enabled content owners to correct for the “copyright deficit,” regulate access, and extract payment from platforms and users. This result conforms to standard economic logic. It is widely recognized that property rights in physical assets are necessary to induce the investments required to acquire, develop, and cultivate those assets, which in turn supports secondary trading, licensing, and financing markets. With appropriate modification to reflect certain properties of creative goods, the same principle holds true for digital content assets. So long as it remains costly to produce, promote, and distribute creative works, some form of property rights—whether implemented through copyright, contract, technology or a combination—will be necessary to sustain investment incentives for content originators and aggregators in the creative ecosystem. Recognition of this foundational principle can enable the development of balanced copyright policies that address the concerns of all stakeholders in the emergent applications of artificial intelligence in the creative industries.

Recommended Citation

Jonathan M. Barnett, The Free Content Illusion, 33 J. Intell. Prop. L. 1 (2026).
Available at: https://digitalcommons.law.uga.edu/jipl/vol33/iss1/2