[IP] MM, etc on copyright
Delivered-To: dfarber+@xxxxxxxxxxxxxxxxxx
Date: Wed, 25 Feb 2004 16:58:23 -0500
From: L Jean Camp <jean_camp@xxxxxxxxxxx>
Subject: MM, etc on copyright
To: dave@xxxxxxxxxx
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=357461
Dave,
I think Wendy is leader in consideration of costs of copyright. I enjoyed
the discourse you published earlier on your list and wanted to point you to
this.
-Jean
Authors, Publishers, and Public Goods: Trading Gold for Dross
WENDY J. GORDON
Boston University School of Law
Boston Univ. School of Law Working Paper No. 02-23
Loyola of Los Angeles Law Review, Vol. 36, p. 159, Fall 2002
Abstract:
The article seeks to clarify what is at stake - and what is not - in the
litigation challenging the constitutional validity of the Sonny Bono
Copyright Term Extension Act (CTEA). First, the article distinguishes
between the CTEA's retrospective term extension of copyright term and the
retrospective extensions enacted by prior Congresses. The article suggests
that the CTEA provisions are constitutionally questionable in ways that
earlier retrospective extensions may not have been. To hold the CTEA
unconstitutional would not make all other term extensions vulnerable.
Second, the article shows how non-creative physical activities such as
digitization and film preservation have public goods characteristics that
did not attach to equivalent physical activities (such as typesetting) in
the eighteenth century. The article argues that, nevertheless, no expansion
of the Copyright Clause is triggered by this new susceptibility to free riding.
The Constitution does not treat all public goods problems similarly. For
example, the Constitution singles out only some public goods for federal
concern (e.g., national defense), while leaving others to state and local
discretion. Implicit in the Supreme Court's existing jurisprudence is a
finding that the Copyright Clause of the Constitution treats the free-rider
problems faced by non-creative public goods (such as digitization and
restoration of old media) differently from the free-rider problems faced by
creative public goods (such as works of authorship). The article argues
that the Copyright Clause is exclusively or primarily concerned with
providing remedies for the latter. The article thus suggests that the
CTEA's retrospective extension embodies a constitutionally impermissible
tradeoff because it uses federal power to gain - at most - some
encouragement for non-creative activity, while discouraging the creative
activity with whose encouragement Congress was originally entrusted.
In addition, the article reviews and expands on the usual economic
arguments for limiting the duration of intellectual property. In
particular, the article uses the Nirvana Fallacy to show the dynamics that
can hide behind the usual unitary notion of "deadweight loss," and recasts
another phrase from the language of economics - the "increased costs of
creation" - in a way that makes clear the aesthetic and psychological costs
imposed by a long copyright
-------------------------------------
You are subscribed as roessler@xxxxxxxxxxxxxxxxxx
To manage your subscription, go to
http://v2.listbox.com/member/?listname=ip
Archives at: http://www.interesting-people.org/archives/interesting-people/