The Case against Copyright: A Comparative Institutional Analysis of Intellectual Property Regimes

The Case against Copyright: A Comparative Institutional Analysis of Intellectual Property Regimes

Kieff, F. Scott Scott, "The Case against Copyright: A Comparative Institutional Analysis of Intellectual Property Regimes" (October 2004). Stanford Law and Economics Olin Working Paper No. 297; Washington U. School of Law Working Paper No. 04-10-01.

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    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 regimes - copyright, 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, and agency costs. Underlying this paper's stark departure from both the "more" and "less" bodies of the IP literature is the realization that the institutional structure of the present copyright regime may make the social costs of the present copyright regime too high, for at least the entertainment industry, while at the same time preventing it from providing the coordination benefits an IP regime normatively should provide. Building on this, the paper begins to explore for the first time whether the recent patent and trademark regimes have institutional structures that may allow them to provide these coordination benefits better, and with lower social costs. The paper thereby suggests how the patent and trademark regimes of yesterday may obsolete the copyright system of today.

    Keywords: Patent, Trademark, Copyright, New Institutional Economics, Innovation, Invention, Property, Antitrust

Facts on copyright

  • Robert Greenwald, a director of Uncovered: The Whole Truth About the Iraq War documentary was refused the right to use a clip of a George W. Bush interview from NBC's Meet the Press. Although the fair use provisions may apply in such cases, the risks and the pressure from insurance companies usually prevents the use of materials without permission. In the US in 2003, controversial changes implemented by the Sonny Bono Copyright Term Extension Act extending the length of copyright under U.S. copyright law by 20 years were constitutionally challenged unsuccessfully in the United States Supreme Court.
  • The right to adapt a work means to transform the way in which the work is expressed. Examples include developing a stage play or film script from a novel translating a short story and making an arrangement of a musical work. Limits and exceptions to copyright Main article: Limitations and exceptions to copyright. Idea-expression dichotomy and the merger doctrine Main article: Idea-expression divide A copyright covers the expression of an idea, not the idea itself --- this is called the idea/expression or fact/expression dichotomy. For example, if a book is written describing a new way to organize books in a library, a copyright does not prohibit a reader from freely using and describing that concept to others. It is only the particular expression of that process as originally described that is covered by copyright.
  • First-sale doctrine Copyright law does not restrict anyone from reselling legitimately obtained copies of copyrighted works, provided that those copies were originally produced by or with the permission of the copyright holder. It is therefore legal, for example, to resell a copyrighted book or CD. In the United States this is known as the first-sale doctrine, and was established by the courts to clarify the legality of reselling books in second-hand bookstores.

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