Myth of the Creator:
Government, Corporate Copyright Owners, Users & Creators- Diagnosis, Prognosis & Public Policy Prescription of Market Failure

Harry Hillman Chartrand ^©
Saskatchewan Municipal Government, September 1996

Introduction

This policy research note presents one economist's brief about the relative bargaining power of creators and corporate copyright owners in the assignment, licensing and sale of copyrighted works in the literary, media, performing and visual arts.  While it is not a legal opinion, the note rests on the assumption that copyright like other forms of

.. intellectual property is, after all, the only absolute possession in the world...  The man who brings out of nothingness some child of his thought has rights therein which cannot belong to any other sort of property...  

Chafes, Z., Jr., "Reflections on the Law of Copyright: I & II", Columbia Law Review, Nos. 4 & 5, July & September 1945,  in Great American Law Reviews, Berrings, R.C. (ed), Legal Classics Library, Birmingham, 1984, pp. 506-7.

It will be shown, however, that this is a legal fiction.  In fact, intellectual property carries fewer rights and lesser rights than other forms of property.  Further, these rights are more easily alienated.

The true beneficiary of creator's rights and royalties are global, continental and national communication conglomerates. There is not a free, fair and competitive market for the works of creators: In economics, this is termed a `market failure' and such a failure justifies public policy action.

A diagnosis (i.e., identification of a disease by means of the patient's symptoms) of market failure will be drawn; its prognosis forecast; and a public policy prescription proposed.

1. Diagnosis

a) Forces

Bargaining engages all forces enabling a buyer or seller to set or maintain a price. In the case of bargaining between creators and corporate copyright owners, market failure exists due to the interplay of four forces:

i - copyright as property, monopoly and rules of the game;

ii - limited organizational capacity of creators as a class of producers;

iii - increasing corporate concentration; and,

iv - declining public support and new creator's rights and exemptions.

i - Copyright as Property, Monopoly & the Rules of the Game

The nature of copyright itself is a contributing factor to market failure.  It is, at one and the same time, a form of property, an industrial monopoly and, as the Copyright Act, the rules of the game in bargaining.

As Property

The legal mechanism by which creators sell their work is copyright.  This is achieved through the assignment licensing or outright sale of a creator's rights in a work.  To some observers copyright is a `natural right', that is the right to property lays in the natural right of a person to one's own labor and the fruits of one's labor, not in a grant of privilege from the State.  In the European Civil Code tradition, creator's rights are natural rights. In that tradition, such rights are inherent in and inalienable from the creator.

In the Anglo-Canadian-American tradition, however, copyright is not a natural right.  Furthermore, a creator's rights are more limited and more easily alienated than other forms of property under Common Law.

A related issue is whether Aboriginal Heritage Rights (AHRs) are a natural right.  To many tribal peoples of the Fourth World, a song, story or icon does not belong to an individual but to the collective, to the tribe or the aboriginal nation.

In both English and European traditions; however, rights in a work are granted to or vested in the individual creator.  In the English tradition, they can be granted to a corporation under the Common Law fiction that a corporation is an individual human being.  Furthermore, a work must be `fixed' in material form. Rights are also limited to the life of the creator plus a fixed number of years after his or her death (usually 50 years in Canada).  Once that time has expired, the work enters `the public domain' and is available to anyone at no cost.

AHRs reside in a tribe or nation.  They are not limited in time and in oral cultures they are not fixed in material form. Accordingly, most aboriginal cultural creations are in the public domain.  Thus with respect to AHRs, aboriginal peoples have no standing in court. They have no intellectual property right to their own patrimony.  Accordingly, their intellectual property can be freely appropriated by anyone of any culture or nationality at any time.

As Monopoly

Copyright began as, and remains, an industrial monopoly granted by the Crown or State.  Originally it was granted to printers, not creators.  Thus Tudor and Stuart monarchs incorporated and maintained the London Stationers' Company (1557) as a guild with exclusive rights of publication of all books.  Books had to be registered with the Company which enjoyed drastic powers of search and seizure of unauthorized books.  This monopoly was justified as a means of preventing publication of heretical and seditious works, i.e., of censorship, and as a Crown grant of industrial privilege to royal favorites.

It was only with the triumph of Parliament over the monarchy in 1689 that erosion of Crown grants of printers' rights began. Thus, in 1710, the Statute of Queen Anne was passed awarding copyright, for the first time, to the creator of a work based on the principle of original composition.  It was not, however, until 1774 that the House of Lords confirmed a creator's rights and finally did away with Common Law printers' rights.

The Statute of Queen Anne (and all subsequent copyright statutes in the English tradition) was justified not only for encouraging "learned men to compose and write useful books" but also to protect the legitimate financial interest of "proprietors" who, by sale or assignment of the author's copyright, were almost invariably publishers.  Thus the monopoly power inherent in copyright was, and usually is exercised by market intermediaries such as printers, producers and publishers, not by individual creators.

We should start by reminding ourselves that copyright is a monopoly. Like other monopolies, it is open to many objections; it burdens both competitors and the public. Unlike most other monopolies, the law permits and even encourages it because of its peculiar great advantages. Still, remembering that it is a monopoly, we must be sure that the burdens do not outweigh the benefits. So it becomes desirable for us to examine who is benefited and how much and at whose expense...

Chafes, Z., Jr., "Reflections on the Law of Copyright: I & II", Columbia Law Review, Nos. 4 & 5, July & September 1945,  in Great American Law Reviews, Berrings, R.C. (ed), Legal Classics Library, Birmingham, 1984, pp. 506-7.

Even today, some types of copyright are not granted to the creator.  Copyright in a motion picture, photograph or sound recording is granted to the owner of the negative or whoever makes the arrangements for such a work to be made.  Copyright is not granted to the artistic director or auteur' in the European tradition.  Similarly, copyright in a work created by an employee is granted to the employer, not the creator.

Typifying the historic trade-off between creators and corporate intermediaries is the infamous Manufacturers' Clause of the U.S. Copyright Act which was repealed only in the 1980s.  Until the end of the 19th century foreign authors were ineligible for U.S. copyright.  Their works were freely pirated by U.S. publishers. U.S. authors, however, complained that their works were being ignored in favor of royalty-free U.K. works, e.g., those by Dickens.  The Manufacturers' Clause (more properly the Chace Act of 1891) granted copyright to foreign authors, but required that all English language books sold in the U.S. be printed in the U.S. The Manufacturers' Clause represents the historic U.S. compromise between conflicting interests of creators and corporate copyright owners.

Ongoing tension between these two interests is clearly defined in a major study of Canadian copyright reform:

In arriving at recommendations for revision of the Copyright Act, basic conflicting objectives have to be reconciled. On the one hand some believe that the copyright law should be a force to help shape the cultural life of a society. On the other hand, it has been said that the control given to a creator over his work should be absolute. The present law in fact limits the rights of an author, particularly in time. That copyright law makes works available only because it brings to authors a mandatory return may be true. It is certainly true that the works of creators will not be the subject of mass production and distribution if entrepreneurs cannot be assured of realizing a reasonable return.
      The problem therefore lies in finding the proper equilibrium which allows a creator to pursue his rights, and to benefit from the use of his works, but which also assures the entrepreneur reasonable returns. This Paper is devoted to a consideration of how this balance may be achieved within the public interest.

Keyes, A.A., C. Brunet, Copyright in Canada: Proposals for a Revision of the Law, Consumer and Corporate Affairs Canada, Ottawa, April 1977, p.2.

Thus, in the Anglo-Canadian-American tradition, copyright provides the legal foundation for the industrial organization of the cultural sector.  It is through ownership of copyright and related 'neighboring rights' that global media conglomerates are able to construct and maintain their communications empires.

As Rules of the Game

Copyright also sets the rules of the genie in bargaining.  First, the formal rules are set by national governments.  Each nation sets its own rules within its own distinct historic legal tradition.  In Canada, formal copyright is the constitutional responsibility of the Government of Canada. Relevant legal traditions include English, European and First Nations' traditions.

If a country is a member of an international copyright convention, national rules must be applied equally to foreign nationals if their countries are convention members.  This is called 'national treatment'.

Second, the rules set out a spectrum of discrete rights than can be assigned, licensed or sold outright - in total, or in part. Furthermore, they can be divided by territory at the global, national, regional and/or specific local level.  Rights can also be divided by `market type', e.g. wholesale vs. retail.  Furthermore, in the English tradition all rights - moral as well as pecuniary - can be alienated - in whole or in part, outright and/or forever. The rights of the artist are `a bounty'. Paid once, a creator need never see a royalty check again nor claim paternity.

Third, the rules give four players legal standing before the courts - the creator, owner, user and the public.  However, the public in the guise of the Crown is seldom party to civil action which is how most disputes are settled. In addition, rules enable and encourage creators to freely form `collectives' to set royalties for the exercise of rights granted in their creations.

Fourth, the rules create a referee (other than the courts) to interpret the rules and mediate disputes between the players.  This is usually some form of quasi-independent statutory board, tribunal or commission.

In summary, part of the cause of market failure in bargaining between creators and corporate copyright owners is the nature of copyright itself. It is a form of property initially owned by a creator. It is an industrial monopoly which serves as the foundation for global communications empires It is also establishes the rules of the game in bargaining between the parties.

ii - Limited Organizational Capacity of Creators

Using a broad definition, artistic creators include actors, architects, authors, composers, designers, directors, craftspersons, filmmakers, musicians, painters, photographers, playwrights, singers and sculptors in the amateur (avocational) and professional applied, entertainment and fine arts industries. This embraces both 'creative' and 'interpretative' artists.

Creators are, relatively speaking, many in number and competitive in the sale of their work and their services.  On average, they are economically disadvantaged relative to other professionals with similar levels of education and training.  In fact, the 12% of artists who are self-employed are second only to pensioners as the lowest paid income group recognized by Revenue Canada Taxation.

The income distribution of artistic creators is not a typical income pyramid of earners with a broad base, thick middle and peak.  Rather it is an obelisk with a huge pedestal base, long narrow shaft and a tiny peak at top composed of a very few very well paid income earners.  There is a tiny middle class.  Creators are usually found at the very top or in the very big bottom but seldom are they found in the middle.

Creators are affected by technological change in many ways.  For example, 'live' creation has, on the one hand, been progressively displaced, and on the other hand, enhanced by pre-recorded creation.  In the process, the economic importance of copyright has, and will continue, to grow.

Live actors compete today with motion pictures, TV and video; tomorrow, they will compete with walking, talking technological simulations of famous long dead actors.  Live musicians survived recordings in the last century; today, they compete with broadcasting, 'talking pictures', the home entertainment center and Muzak.  Visual artists competed with the steel engraving plate in the last century; today, they compete with computer graphics and animation; tomorrow, they will compete with digitalized collections of famous art works projected by computer onto the walls and ceilings of our homes and offices to vary mood and ambience.  Book and periodical writers swelled with the printing press; today, they compete with TV, video and the movies; tomorrow they will compete with the Internet.

No longer can an audience be called 'provincial'.  Audiences around the world now judge local 'live' productions against standards achieved in the world's artistic metropoles - Tokyo, New York, Hollywood, London, Paris and Berlin.  Such `world-class' cultural product, however, is beamed into the comfort of one's own home, office, pub, tavern or theatre through pay-per-view.  Even the Third and Fourth Worlds are being scanned and market tested for potentially marketable cultural product through what some anthropologists call `cultural vampirism'.

By contrast, most literary and visual artists work in isolation or in cottage industry habitats.  By definition, all creators, regardless of discipline, are individualistic.  Accordingly, they do not bond easily as a class of producers.  As individualists, they exercise little market power except for the very few most famous and accomplished.

Creators are articulate in their own media - writers write, painters paint, et al.  Ready access to media colleagues assures the minority of creators with strong collective political or ideological views are heard by the public - usually in protest against real or imagined social wrongs - artist as social conscience.

Unlike other industrial sectors, unions and associations in the arts tend to set minimums above which members mad bargain individually with the 'employer'.  Accordingly, it is the high fees paid to a Margaret Atwood, Alex Coleville, Joe Fafard, Colin James, Louis Lortie, Peter Mansbridge, Buffy St. Marie, Joni Mitchell and Donald Sutherland that catch the public imagination.  'Spear-bearers' in the background earning base `minimum' do not receive much press coverage, public concern or compassion.

Further, unlike other industrialized sectors, artistic unions and associations operate more like old English guilds than 20th century industrial trade unions.  Before guilds were abolished by the 1814 Statute of Artificers, they controlled entry and training in the artistic professions and enforced quality control over output.

Like guild survivors in the 'self-regulating professions' of law, medicine and accounting, the artistic professions maintain apprenticeship, master classes and mentorship as the most effective means of honing and refining the skills and discipline of new and young members of the professions.

In the arts, one can speak of 'an aristocracy of talent' whether in pop or high culture.  Thus, in the 'trade' one hears of the 'crown system' of repertory theatre and 'star system' of Hollywood.

Nonetheless, the works and services of the `average' creators are, relatively speaking, inter-changeable.  Unlike other forms of intellectual property such as patents, registered industrial designs and trade marks, copyright has no utilitarian value in and of itself.  A book can be read (or not), but it makes a poorly designed; second- rate door jam.  A buyer pays an `aesthetic' or stylistic price, not just a financial price for works of a particular creator.  Thus a Harlequin Romance (owned by Thomson's Torstar) costs about the same as a Margaret Atwood paperback.

Furthermore, many individual creators are what is called in industrial relations `free-riders'.  Sometimes they undercut the price charged by members of creator's unions and associations.  At other times, they simply benefit from union minimums without paying dues, recognizing common interests, or exercising community responsibilities.

The result of these factors is paradoxical.  On the one hand, the 'arts' even though segmented into many separate disciplines, unions and associations, are second only to the public sector as the most highly unionized in the Canadian economy.  On the other hand, creators are loosely organized with limited means to successfully launch effective collective action such as strikes and walk-outs.  A day without art may be bland, but daily life goes on and commuter trains keep running.

iii - Increasing Corporate Concentration

In most cases, creators do not sell their work directly to the public.  Rather, they sell to corporate market intermediaries known as dealers, employers, publishers or producers.  Such intermediaries are, relatively speaking, small in number and large in economic size.  It is their ability to vertically and horizontally exploit creator's rights that make possible enormous global communications conglomerate empires.

For example, a book written in India, through sale or license of its copyright, becomes a play in London's West End theatre district.  The play becomes a movie in Hollywood from which posters, a sound track, T-shirts and toys are spun-off in Taiwan.  The movie is then broadcast on Italian television and the sound track on rock radio in Ghana.  The styles and fashions of the film inspire a Munich designer who previews the collection in Paris. Furniture makers in Ontario license the design and manufacture `look-alike' furniture.  A book is then written in New York City about the making of the movie and a film sequel is shot in Saskatoon.  All associated income streams emerge from the initial creator's copyright in the book.  Increasingly these streams are filling up the coffers of global communication conglomerates in broadcasting, motion pictures, publishing and recordings.  To complicate matters, accounting practices in the arts industry are not transparent to public scrutiny.  How much anyone gets is seldom clear.  The situation is similar to the lottery industry in which six different definitions of profit can be employed.

The five largest communication conglomerates account for about one fifth of global annual sales of $U.S. 250 billion. The five largest global communications conglomerates, by parent market and sample subsidiaries, include:

• Bertelsmann (German publisher) which owns Doubleday and Book-of-the-Month Club;

• Hachette (French publisher) which owns Groliers Encyclopedia;

• News Corporation of America (Australian/U.S. newspapers) which owns the Fox television network,

• Sony (Japanese electronics) which owns Columbia Pictures; and,

• Time-Warner (U.S. publishing, motion pictures and recording) which owns Time-Life, Warner Pictures and Warner Records.

Furthermore, in response to 'globalization' of the economy, governments around the world are rapidly 'deregulating' domestic sectors such as broadcasting and cable so that domestic firms can become globally competitive.  In other sectors, such as bookstores and publishing, traditional domestic antitrust or anti-combines laws are being repealed or not enforced for reasons of national economic policy.

The recent spate of newspaper takeovers in Canada by Conrad Black's Hollinger Group is an example of growing corporate concentration which traditionally would have been the subject of intense anti-combines investigation.  Similarly, the media recently reported a threat by the major newspaper chains to withdraw from and thereby kill the Canadian Press syndicate.  This highlights the growing market power of Canadian communications conglomerates as does public controversy over specialty channel pricing by cable companies which now must pay recently granted 're-transmission' rights.

iv - Declining Public Support

At the same time corporate concentration is increasing, government is reducing direct financial support to artists and arts organizations.  In effect, government is pulling back from a `supply-side' policy of giving money to organizations so they can increase the supply of artistic production.

Cut-backs are justified as part of restructuring, retrenchment and redefinition of the public sector in response to deficits and debt. Well into the next century, however, the demographics of health, education, pensions and welfare will continue to fuel transformation of government from what we have known in Canada for nearly 50 years.

Successive federal governments from the mid-1980s have encouraged artists and arts organizations to rely more on a free, fair and competitive. marketplace.  Together with moral encouragement, government has tried to compensate creators by granting new intellectual property rights.  Since 1986 newly introduced rights include: exhibition, moral, performance, reprographic and retransmission rights.

Beyond granting rights to creators, the federal government has taken two structural initiatives.  These include legislative encouragement of new collectives to collect and distribute royalties flowing from these new rights; and Status of the Artist legislation. Both have been publicly justified as means to enhance market earnings of creators.

Status of the Artist legislation has been passed by the federal and Quebec governments and proposed to the Government of Saskatchewan.  It enhances collective bargaining rights of arts unions and associations and partially recognizes the unique financial and tax situation of individual artists.  Similar recognition has been given to farmers and fishermen for decades. It also goes some distance in moving the artistic professions towards 'self-regulatory' status.  Further, Status of the Artist is classified as a form of intellectual property under the law.

Most new rights and Status of the Artist have their roots in the European Civil Code which is operative in Quebec.  In fact, Canada is unique among nations in that both major Western legal traditions are enforced - Anglo-American Common Law and the European Civil Code. Canada is thus not just bi-lingual and therefore bi-cultural, but also a bi-juridic country. A case in point is among recent changes to the Quebec Civil Code.  Specifically, art collections are now treated in Quebec as mortgagable real estate, i.e., as a fixed asset not, as under the Common Law in English Canada, personal movable property.

Recently granted Canadian intellectual property rights are not recognized in the Anglo-American tradition.  Accordingly, the U.S. Copyright Act grants no exhibition, moral or performance rights to creators.  There is also no equivalent of the Status of the Artist Act.

Creator's right have, however, been granted at the State level in the U.S.  Thus both California and New York recognize droit de suite or rights of following sale' in works of visual artists resident in those States.  When a painting is resold, a painter gets a percentage of each subsequent sale.

With respect to the second structural initiative of the federal government, new copyright collectives have been legislatively enabled and encouraged.  They have been justified as an efficient institutional mechanism to collect and distribute new royalties to creators.  Collectives have managed traditional copyright for nearly a century.  They work for `copyright owners' whether individual creators or corporations.

Many, if not most, copyrights, I believe, are assigned, licensed or owned outright by corporate conglomerates, not individual creators.  Accordingly, collectives are pipelines fueling growth, increasing concentration and market power of global, continental and national communications conglomerates.

b) Bargaining Power

Forces available to the average creator to set or maintain the price of a unique work of art made by a unique creator are few except for the most famous and those best placed to mount effective collective action, e.g. actors, musicians and technicians.  

In theory, copyright grants a monopoly to creators against which the public must be protected but which ensures a fair market price for creators.  In practice, however, forces available to corporate copyright owners are increasingly great.  It is they, not the average creator, who exercise real market power.  It is against corporate copyright owners that the public and creators need to be protected.  

This is increasingly true as government cuts the 'arts' and handicaps the next best buyer of creator's work.  Such buyers include national, regional and local non-profit market intermediaries such as Coach House Press, the CBC, NFB, the Canada Council, and all the alternative galleries and artist-run spaces and presses, main stream galleries and museums, dance and theatre companies and orchestras which collectively constitute the institutional legacy of public patronage of the arts in Canada.  In compensation for its financial withdrawal, government has offered up new creator's rights and fortified collective bargaining with Status of the Artist legislation.

i - An Academic Example

A traditional example of the relative power of creator and corporate copyright owner is the academic author who must 'publish or perish'.  Accordingly, such authors usually sign away all rights to their work in order to be published.

In many cases journals, especially in the natural sciences and engineering, are owned by for-profit firms such as Elsvier in Holland, Plenum in Britain and Wiley in the U.S. Such corporations, in turn, are generally owned by media conglomerates such as Rubert Murdoch's News Corporation.  Thus it is corporate copyright owners who profit from academic creator's rights while providing no royalties to creators.  For academics, however, payment is indirect through enhanced career opportunities.

An institutional anomaly emerged with the introduction of reprography or photocopying rights in 1986.  Thus, royalties for the photocopying of an article written by a Canadian researcher at a Canadian university go to global corporate copyright owners. Royalty payments flow from universities and colleges through copyright collectives to corporate copyright owners, not to researchers or the universities themselves.

ii - A Moral Example

In effect, the federal government has experimented with the moral marriage of English and European legal traditions of creator's rights for nearly a decade.  In 1986 Bill C-60 introduced 'moral rights' in the European tradition.  These are 'personality' or 'paternity' rights including the right to: claim authorship; protect the integrity of a work; to publish; and, withdraw a published work from circulation.

In the European tradition, such moral rights are inherent and inalienable to the creator.  In the English tradition, however, Canadian moral rights can be extinguished by contract.

iii - Blanket Licenses

The principle instrument used to extinguish, after a one-time payment, all subsequent creator's rights is the 'blanket license'.  In effect, a blanket license strips away an artist's most personal and precious assets extinguishing all rights to a return on subsequent exploitation of a creator's work.

The blanket license is used in all the arts.  For example, in the literary arts, both the Montreal Gazette and the Toronto Globe & Mail now require freelance authors to sign blanket licenses.  This purportedly is necessary to make works available on the worldwide web. All royalties from the author's work go to corporate copyright owners.  Thus if a short story becomes a Hollywood screenplay, the creator receives nothing. The corporate copyright owner, however, may collect big time. Members of the Periodical Writers Association of Canada are boycotting both the Gazette and Globe & Mail and threatened a class action suit against Thomson (reputedly the fifth largest printing company in the world) and Black conglomerates.

In the visual arts, government is cutting direct support to public galleries and museums.  At the same time, the federal government is requiring them to pay for administration of, and royalties for, exhibition rights.  This has been a double blow to the nonprofit gallery and museum communities. In response they have drafted a standard contract to extinguish 'exhibition rights' on the purchase of a work of art.  When faced with no sale to the National Gallery, a young creator usually will forgo a fee for future exhibition royalties.

In the media and performing arts, passage by Parliament of the World Trade Organization Accession Act in 1994 granted 'performance rights' through amendments to the Canadian Copyright Act.  In the European tradition, performers now may claim, like authors and composers, a royalty for use of recordings of their work.  In the English tradition, however, such `performance rights' can explicitly be extinguished by contract.

iv - Outside Rights

'Outside' rights refers to creator's rights existing outside of the Copyright Act.  Generally outside rights are inherent in and inalienable from the creator.  They can not be transferred by contract, e.g. to corporate copyright owners.  Furthermore, outside rights are not subject to international convention. Therefore, national treatment is not extended to non-residents.  This means a country can target and reward its own citizens.  In turn, this enhances the bargaining power of creators by increasing subsequent earnings.

In the U.S., outside rights include rights of following sale granted to artists resident in New York and California states.  Under these laws, an artist is entitled to a percentage of the subsequent sale price of his or her work. In Canada, outside rights are currently limited to Public Lending Rights for books. PLRs are based on the premise that the public benefits from libraries but authors suffer lost sales.  Therefore, market failure exists justifying a public policy response.  PLRs compensate authors from a federal fund. Payments are capped so no one author receives too much.  Payments are restricted to Canadians and payments goes directly to the creator.  Variations of PLRs now exist in some 20 countries.

c) Market Failure

A counter-intuitive policy outcome refers to attaining the opposite of an intended objective.  There are many examples in both the private and public sectors.  Often they occur because a policy creates `moral hazard'.  An example in the private sector is fire insurance which makes arson potentially profitable. U.S. public policy analysts often cite Aid to Families with Dependent Children (AFDC) as an example of a counterintuitive outcome. AFDC is intended to help single parent families.  A poor family receives AFDC money only if a spouse, usually the husband, has left home.  Without employment, a husband is rational to leave thus increasing family income. AFDC thereby fosters another family with dependent children.

If the public policy objective of granting creator's rights is to increase earnings of the average creator, it has, in my opinion, failed.  Through blanket licenses and superior bargaining power, corporate copyright owners have effectively extinguished subsequent royalties to the average creator.  Corporate copyright owners do, however, exercise these same rights to extract a higher price from users.  Increased revenues, in turn, strengthen corporate copyright owners via-a-via the creator.

Market failure exists in bargaining between creators and corporate copyright owners because of: the peculiar nature of copyright; the limited organizational capacity of creators; increasing corporate concentration; and declining public support together with the counter-intuitive results of granting new creator's rights and exemptions.