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Price Discrimination, Personal Use and Piracy: Copyright Protection of Digital Works

Price Discrimination, Personal Use and Piracy: Copyright Protection of Digital Works

Meurer, Michael J., "Price Discrimination, Personal Use and Piracy: Copyright Protection of Digital Works" . Buffalo Law Review

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Abstract

    The growth of digital information transmission worries copyright holders who fear the new technology threatens their profits because of greater piracy and widespread sharing of digital works. They have responded with proposals for expanded protection of digital works. Specifically, they seek restrictions on personal use rights regarding digital works provided by the fair use and first sale doctrines. The proposed changes in the allocation of property rights to digital information significantly affect the ability of copyright holders to practice price discrimination. Broader user rights make discrimination more difficult; broader producer rights make discrimination easier. I argue that more price discrimination not less piracy or sharing would be the really significant effect of the proposed changes. The problem of digital piracy can probably be handled by technical means with modest changes in copyright law. The so-called problem of sharing is not really much of a problem except for price discriminators. On the other hand, copyright expansion could significantly expand opportunities for price discrimination. Curtailing personal use rights would make it easier for a price discriminator to measure buyer valuations and stop buyers from arbitraging away price differences.

Facts on copyright

  • Once the term of a copyright has expired, the formerly copyrighted work enters the public domain and may be freely used or exploited by anyone, as courts in the United States and the United Kingdom have rejected the doctrine of a common law copyright. Public domain works should not be confused with works that are publically available. It is completely incorrect, for instance, that simply posting material on the Internet places the material into the public domain such that anyone can freely copy, adapt or commercially exploit the work. Apart from anything else, the material may have been posted by someone who had no right to do so, let alone the power to waive copyright.
  • The Berne Convention for the Protection of Literary and Artistic Works of 1886 first established the recognition of copyrights between sovereign nations (copyrights were also provided by the Universal Copyright Convention of 1952, but today this agreement is largely only of historical interest). There may be exceptions to this rule, depending on the nature of the work, whether it was created in the course of employment and the purposes for which the work was created.
  • In the United States the AHRA (Audio Home Recording Act Codified in Section 10, 1992) prohibits action against consumers making noncommercial recordings of music, in return for royalties on both media and devices plus mandatory copy-control mechanisms on recorders.

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