Recently I read two great articles on copyright: Tim Wu’s Copyright’s Communications Policy and Mark Lemley’s Ex Ante Versus Ex Post Justifications for Intellectual Property.
Wu’s paper, which has already been praised widely in the copyright blogosphere, argues that copyright law, in addition to its well-known purpose of creating incentives for authors, has another component that amounts to a government policy on communications systems. This idea has been kicking around for some time, but Wu really nails it. His paper has a fascinating historical section describing what happened when new technologies, such as player pianos, radio, and cable TV, affected the copyright balance. In each case, after lots of legal maneuvering, a deal was cut between the incumbent industry and the challenger. Wu goes on to explain why this is the case, and what it all means for us today. There’s much more to this paper; a single paragraph can’t do it justice.
Lemley’s paper is a devastating critique of a new style of copyright-extension argument. The usual rationale for copyright is that it operates ex ante (which is lawyerspeak for beforehand): by promising authors a limited monopoly on copying and distribution of any work they might create in the future, we give them an incentive to create. After the work is created, the copyright monopoly leads to inefficiencies, but these are necessary because we have to keep our promise to the author. The goal of copyright is to keep others from free-riding on the author’s creative work.
Recently, we have begun hearing ex post arguments for copyright, saying that even for works that have already been created, the copyright monopoly is more efficient than a competitive market would be. Some of the arguments in favor of copyright term extension are of this flavor. Lemley rebuts these arguments very convincingly, arguing that they (a) are theoretically unsound, (b) are contradicted by practical experience, and (c) reflect an odd anti-market, central-planning bias. Based on this description, you might think Lemley’s article is long and dense; but it’s short and surprisingly readable. (Don’t be fooled by the number of pages in the download – they’re mostly endnotes.)