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Why Copyright Law May Have a Net Negative Effect on New Creations: The Overlooked Impact of Marketing

Why Copyright Law May Have a Net Negative Effect on New Creations: The Overlooked Impact of Marketing

Nadel, Mark S., "Why Copyright Law May Have a Net Negative Effect on New Creations: The Overlooked Impact of Marketing" (January 8, 2003).

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Abstract

    This article questions whether copyright law's prohibition against unauthorized copying and sales is either necessary or beneficial to the production and dissemination of creative content. Building on the thesis of Stephen Breyer's 1970 Harv. L. Rev. article, The Uneasy Case for Copyright, it questions the necessity of copyright by carefully identifying and explaining how new technologies and social norms provide many viable business models for financing new creations without the need for the current broad copyright protection. More significantly, it contends that, in the current lottery-like media entertainment environment, the higher revenues that copyright law enables the most popular creations to generate are generally dissipated on promotional efforts (rent seeking), which tend to drown out marginal creations. Thus, current copyright law may actually reduce the production of new creations. As background, the article reviews the six categories of costs that must be covered to enable content to be published effectively.

Facts on copyright

  • Once an idea has been reduced to material form, for example by securing it in a fixed medium (such as a drawing, sheet music, photograph, a videotape or a letter), the copyright holder is entitled to enforce his or her exclusive rights.
  • 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.
  • Once an idea has been reduced to material form, for example by securing it in a fixed medium (such as a drawing, sheet music, photograph, a videotape or a letter), the copyright holder is entitled to enforce his or her exclusive rights.

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