The myth of technological neutrality in copyright and the rights of institutional users: Recent legal challenges to the information organization as mediator and the impact of the DMCA, WIPO, and TEACH

This article discusses the accelerating trend of ownership rights in digital property, copyright, in specific. This trend is in contrast to the stated legislative purpose of copyright law to be neutral as to the technology that either owners employ to embody the copyrighted work or that others employ to facilitate access and use of the work. Recent legislative initiatives as well as interpretive court decisions have undermined this important concept. There is an ascendancy of digital ownership rights that threatens to undermine the concept of technological neutrality, which in essence guarantees that ownership and well as “use” rights apply equally to analog and digital environments. The result of this skewing is twofold: an unstable environment with respect to the access and use rights of individuals, institutions, and other users of copyrighted material, and the incentive of copyright owners to present works to the public in digital formats alone, where ownership rights are strongest. This article attempts to plot that digital ascendancy and demonstrate the undermining of neutrality principles.