manufacture what in effect were fixed, stable, material or — as the expression now goes — “hard” copies of the work. In turn these hard copies needed to be stored, transported and distributed, before reaching the shelves on which the public would finally find them.
It was difficult for creators to engage in all these steps; and this is why, as a rule, they preferred to resort to businesses to set up the characteristic trilateral relationship between creator, business and the public, which is typical of primary exploitation of copyrighted works.[1] The kind of business that appeared to be indispensable for this purpose had features which the last two centuries made familiar. To begin with, it had to make substantial outlays to figure out whether there was a market for the work, and it had to invest and take large risks for the mass production of material copies of works and for their distribution. This was all done on a scale that increased in step with the extension of the markets. Publishers, film studios and record labels are appropriate cases in point. Radio and television came in to take care of so-called “secondary” utilization of work. This was a long route to institute contact between the creator and the public; and business was a very valuable, indeed indispensable intermediary to achieve such a goal.
In the digital environment all this dramatically changes. On the production side, perfect digital copies make “factories” of physical, material copies of works redundant, at least in principle.[2] What is particularly remarkable is that this same development is now reaching the movie industry. Until recently this sector of the entertainment business appeared to be the last bulwark in which capital-intensive business could be considered indispensable. But this is becoming less and less true as each day passes. Jean Cocteau predicted that the tools required for the creation of a movie would at some point in time become
- ↑ See in this connection in W. R. Cornish, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (London: Sweet 8: Maxwell, 1996), p. 401.
- ↑ It may be argued that this is true only for additional copies, the ones which can be costlessly multiplied after what we could call the initial embodiment, the prototype or the “master” has been first created; and to this it may be added that, for the latter, the required investment still is huge. This objection has indeed been raised a number of times, for example by Paolo Auteri, “ll paradigma tradizionale del diritto d’autore e la nuove tecnologie” in Proprieta digitale: diritti d’autore, nuove teenologie e Digital Rights Management, ed. by M. L. Montagnani and M. Borghi (Milan: Egea, 2006); but the case becomes less and less defensible as the time passes. The role of software and of digital technology in the creation and initial fixation of music is increasing all the time; and their cost is decreasing in parallel.
