An Industrial Organization Approach to Copyright Law
2004; Routledge; Volume: 46; Issue: 1 Linguagem: Inglês
ISSN
0043-5589
Autores Tópico(s)Art History and Market Analysis
ResumoTABLE OF CONTENTS INTRODUCTION I. COPYRIGHT AND THE ECONOMICS OF PRODUCT DIFFERENTIATION A. The Salop Model 1. The Setup 2. The Results 3. The Counterintuition: Pecuniary Externalities B. Modifying the Salop Model 1. Variability in Consumer Surplus 2. Additional Modifications 3. A Simulation Study II. ADDITIONAL ECONOMIC AND NONECONOMIC CONSIDERATIONS A. Other Economic Considerations 1. Distribution a. Producers vs. Consumers b. Winner-Take-All Markets c. Positional Goods 2. Externalities a. Information Externalities b. Congestion Externalities c. Network Externalities B. Differentiation and Democracy 1. Democracy vs. Economics 2. A Democratic Assessment of Production Incentives III. APPLICATIONS AND IMPLICATIONS A. Applications 1. Peer-to-Peer Technology 2. The Copyright Term B. Implications 1. Copyright and Distributive Justice 2. Copyright Across Time CONCLUSION APPENDIX INTRODUCTION Copyright law's paramount goal is often said to be the provision of incentives for producing new works, (1) yet the literature on copyright offers few concrete examples of how any legislatively plausible changes in copyright law would have meaningful effects on the variety of copyrighted works available to consumers. Those who favor restricting copyright's scope or duration note that authors necessarily build on the works of their predecessors. (2) Because copyright law does not protect ideas, (3) however, they can point only to peripheral categories of works that copyright law stymies, such as counter-culture Mickey Mouse cartoon strips (4) or digital sampling of existing works. (5) Meanwhile, those who defend copyright and seek to extend it bemoan the decline in profits that record companies have suffered (6) and that Hollywood may face. (7) Yet they do not name the musical groups that may be sent over the edge into bankruptcy or the movies that would not have been made if anticipated sales were slightly lower, and with good reason. In general, the works on the borderline of being created are not the ones that consumers would care about the most, and the outcome of contemporary debates about copyright law's scope will impact only those marginal works. It would thus be easy to conclude that debates on copyright law, though perhaps a useful form of intellectual exercise, matter only a bit in the real world. Such a conclusion, however, would be unwarranted. Copyright theorists often consider trade-offs between incentives to produce new works and other values, in particular maximizing dissemination of existing works to users, (8) a trade-off that is sometimes called the incentives-access paradigrn. (9) An expansive doctrine of fair use, for example, may allow users greater access to copyrighted works, but any expansion will decrease incentives to produce new works. (10) Yet there have been few attempts to make the trade-off any more precise. In particular, scholars have not considered whether this trade-off is the same regardless of the number of works that copyright law generates. This Article argues that the greater the success of copyright law in generating large numbers of works, the more copyright law should care about access. Just because incentives are the paramount goal of the copyright system as a whole does not mean that they are the most important consideration at the margins. Copyrighted works can serve as imperfect substitutes for one another, so the more works that exist of a particular type, the greater the number of substitutes that will exist for any particular work. The importance of incentives to produce new works is less significant when the number of existing works and the chance that a new work will be largely redundant are greater. Equivalently, the goal of disseminating existing works should be of relatively great significance in markets with large numbers of copyrighted works. …
Referência(s)