E-Book Overview
Media, Technology and Copyright is an interdisciplinary work that applies economic theory to central topical issues in the law of intellectual property. Based on the author’s professional experience as a professor, lecturer, and consultant, the volume represents the first full-length consideration of the diverse topics of law and copyright by a professional economist. Opening chapters of the book involve issues in the analog domain, including the economics of infringement, fair use, property damages, liability rules, compulsory licensing, and publicity rights. Chapters on digital rights include topics related to software, databases, and cyber-law, including digital rights management, file-sharing, music licensing, deep linking, framing, and contributory infringement. The author also brings economic insights to competition law for intellectual property, including antitrust, copyright misuse, and applications in the European Union. Written in non-technical language for an interdisciplinary audience of lawyers, economists, students, artists, and professionals in the content industry, the book provides a comprehensive study for anyone interested in the issues surrounding intellectual property rights.
E-Book Content
1.
Introduction
1.1 ECONOMICS AND COPYRIGHT Copyright for original works is now protected in the US by the Copyright Act of 1976, which is now codified in Title 17 of the US Code.1 Section 102 of the Act extends copyright protection to original works of authorship that are fixed in any tangible medium of expression.2 Eight identified works of authorship include material of literary, musical, dramatic, choreographic, pictorial/ sculptural, audiovisual, sound recording or architectural nature.3 Section 106 grants to copyright owners generally exclusive rights to make reproductions, prepare derivative works, distribute copies, make public performances and publicly display controlled works.4 However, the Act elsewhere provides important restrictions on the exercise of these rights, including fair use,5 term duration,6 the idea-expression dichotomy,7 the first sale doctrine8 and exemptions for libraries,9 education10 and the blind and the handicapped.11 The economic justification to protect with copyright an artistic work or software is reasonable. A large fraction of production costs must be incurred upfront, with considerable expense and effort to create and work up for market. Without copyright protection, the resulting product is nonexcludable, in the sense that later access to content can be available to all who see or hear it. While free reproduction, performance and display may benefit users, such takings can expropriate from creators due rewards for invested efforts. In time, the danger of expropriation compounds and reduces the incentives to create content in the first place. One general economic remedy for the economic problem then is to establish property rights through protective social agreements – i.e., copyright.12 Economists then generally defend some form of copyright as a collective arrangement13 that provides incentive and security for artists, writers, publishers and programmers.14 That is, copyright protection creates a legal right against unsigned parties that is made viable by a legislative compact that no one individual could effectively negotiate and enforce. When producer rights are secure, additional incentives for yet more creation presumably follow. Indeed, the stated purpose for the US patent and copyright system supports an economic instrumentalism based on incentive,15 which varies philosophically from a European perspective that recognizes the concept of an inalienable moral right that is attributable to the author’s inner personality.16 1
2
Media, technology and copyright
However, copyright presents two key countervailing concerns. In exercising or p