Copyright's Empire: Why the Law Matters (original) (raw)
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One Hundred Years of Solicitude: Intellectual Property Law, 1900–2000
Routledge eBooks, 2017
The elaboration of intellectual property law is closely intertwined with new technologies. The Review Essay draws on selected episodes from the past 100 years to illustrate the three typical stages by which the legal system accomodates new technologies: (1) disequilibrium; (2) adaptation and adjustment; and (3) legislative consolidation. The final section of the Article introduces a cautionary contemporary note. As a byproduct of the increasing value of intellectual property, there has recently been a rapid increase in legislative activity, and concomitant lobbying activity. This changing political economy is greatly compressing the traditional threestep process, and may bypass it entirely in some circumstances. As a counterbalance to overzealous legislation, courts may be forced to look to the constitutional foundations of intellectual property as a source of limiting principles. 1. See, e.g., Benjamin Kaplan, AN UNHURRIED VIEW OF COPYRIGHT 1 (1966) ("As a veteran listener at many lectures by copyright specialists over the past decade, I know it is almost obiigatory for a speaker to begin by invoking the 'communications revolution' of our time, then to pronounce upon the inadequacies of the present copyright act ... "). I COPYRIGHT Copyright over the past century has often been the focal point of significant anxieties over the law's ability to adapt to new technologies. Movies, radio and television, video recording, software: each new technology has produced cries of alarm over our "outdated" copyright system. Yet through a combination of judicial adaptation and legislative updates, the copyright system has-so far, at least-been up to the job at every turn. This section discusses three of the most important developments in copyright law over the past century: the 1909 Act; the prologue to and promulgation of the 1976 Copyright Act (including the Commission on New Technological Uses of Copyright Works (CONTU)); and post-1976 doctrinal developments limiting the scope of software copyright under traditional concerns about functional works. In fits and starts, and with 2. Economists define rent as a supra-normal return, that is, a revenue higher than would be necessary to justify a given investment, taking into account a "normal" level of profit. See generally Alan W. Evans, On Monopoly Rent, 67 LAND ECON. 1 (1991). 3. Rent-seeking is the expenditure of resources in an effort to capture these supra-normal returns; lobbying for special legislative privileges is a classic example. See TOWARD A THEORY OF THE RENT-SEEKING SOCIETY (James M.
Copyright Through the Prism of the Law and Economics Movement: A Scientific Approach
Publishing Research Quarterly, 2021
This paper discusses aspects of economic analysis of law developed because of the status quo existing on the Internet and of the evolution of legal theory on copyright. It also explores the massive increase of interest in the law and economics of intellectual property during the first decade of 21 st century. The paper argues that law and economics discourse on copyright foregrounds policymaking with a focus on copyright's economic ramifications. This paper also examines Coase's theorem and its influence on considerations about copyright regulatory frameworks and potential reform to keep abreast of ongoing technological advancements and their impact on copyright protection in the digital age. I COPYRIGHTED WORKS ON THE INTERNET This paper discusses aspects of economic theory developed under the influence of the status quo existing on the Internet and of the evolution of legal theory on copyright. The emergence of the law and economics movement has captured various segments of policymaking, including the discipline of copyright in law. 1 The roots law and economics has emerged as a significant branch in legal theory with the seminal work of Ronald Coase, Nobel Memorial Prize in Economic Sciences (1960). 2 The literature indicates a massive growth of interest in the law and economics of intellectual property by the beginning of the 21 st century. 3 Economics has a direct effect on copyright, and law and economics discourse on copyright has dominated
Shall We Dance? When Law and Economics Meets Copyright
2008
In the late 1960s and early 1970s, Law and Economics emerged as a wholly new field of legal research and study. Economics provides not only a behavioral theory to predict how people respond to changes in laws, but also a useful normative standard for evaluating law and policy. In the eyes of economists, laws are instruments for achieving important social goals, namely, resources allocative efficiency. In the area of Copyright Law, economic analysis has taken an important role in examining the conflict of interests between copyright owners and public. Scholars and experts of law and economics have been working to find out the most efficient way to allocate the scarce resource and to maximize social welfare – in copyright law, is the Constructional object of promoting the progress of science and useful art. In this article, the author will first introduce the movement of Law and Economic Analysis, and illustrate the development and the central * This article is the revised vision of t...
J. Marshall L. Rev., 2000
Dick the Butcher' Do not call liberty what in reality is no more than license and piracy. Louis Jacob' Like Shakespeare in King Henry VI, when the cry of Dick the Butcher to "first ... kill all the lawyers" was directed to creating havoc in civilized society,' the current trend to "kill" (or at least. Professor of Law, The John Marshall Law School. The author would like to thank Dean Robert Gilbert Johnston and Associate Dean John Corkery for the research grant that supported the development of this Article. She would also like to thank Karen Long, whose love of silent movies first led the author to discover the patent wars that dominated early technological developments in the Twentieth Century motion picture industry. In addition, she would like to thank numerous colleagues in the copyright industry, academia, and practitioner "world" who over the years have engaged in countless debates with the author and helped to shape the views contained in this Article.
The Case against Copyright: A Comparative Institutional Analysis of Intellectual Property Regimes
SSRN Electronic Journal, 2004
Contemporary debates over intellectual property ("IP") generally evidence positions that appear to line up at opposite ends of the same axis, with one side arguing for more rights for IP owners under each major regime-patent, trademark, and copyright-and the other side arguing for fewer. Approaching from what some may see as a "more" IP view, this paper offers the counterintuitive suggestion to consider abolishing one of these IP regimescopyright, at least with respect to the entertainment industry, which represents one of that regime's most commercially significant users. This realization is in fact consistent with the underlying view because the view is not accurately seen as even being directed to the "more" or "less" debate; and instead is focused on means as much as ends. In keeping with this means-directed approach, the paper provides the first comprehensive analysis of IP regimes using the set of tools from the field of new institutional economics. In so doing the paper offers the first normative case for IP that connects the path breaking literature on the theory of property rights generally with the seminal theories of the firm, transaction costs,
Copyright and Intellectual Property: The State of the Discipline
Book History, 2013
A brief overview of the history of copyright should provide cardinal points for newcomers to use in navigating this relatively new interdisciplinary field. Copyright law is not coincident with the introduction of printing, but rather emerges at the beginning of the eighteenth century as a tool for governments to use to limit the power of print monopolies. In early modern Europe, monarchs regulated the print trades through prepublication censorship and monopoly grants or "privileges" designed to align the technology of print with state interests. The first copyright law, the British Statute of Anne (1710), marks the beginning of a transition from royal privileges to commercial rights and a shift from a patronage system to a market for books. The Statute of Anne separated literary property from censorship, granting authors
2010
Intellectual Property is a very serious matter. Some estimates conclude that the current value of intellectual property significantly outweigh the value of physical propertyland, tangibles and intangibles together. A growing percentage of the GDP in industrial countries is comprised now of informational goods such as software, movies, music drugs and databases. 1 The scope of IP protection has of course significant effect on this ecconomic value and the laws regulating intellectual property in the information age are perceived as a key for economic growth. Intellectual property law, therefore, has become of immense importance. It has seen in the last decade the most significant changes since its birth following the invention of printing. The field of IP law became also an important battleground for interest groups, politicians, and different voices in civil society. The borderless nature of informational goods highlights also national interests, which are reflected in internationalization of legal arrangements and institutions in this field and in growing controversies among nations and governments.