Mark Lemley, a UC Berkeley law prof, has just published a paper on copyright called "Ex Ante Versus Ex Post Justifications for Intellectual Property," that's a good, fast read. Lemley says that in copyright's early days, the justificaiton for the auhtor's monopoly was to give authors the incentive to crete new works, but that today, we have the "ex ante" arguments that copyright also gives authors the incentive to exploit their creations — to make more of them once they are created — and to "steward" them by ensuring that only good, quality derivative works enter the market.
Without saying much about the idea that copyright can be a good incentive to create, Lemley tears these other arguments for copyright to shreds, in a highly entertaining fashion:
The argument that a single company is better positioned than the market to make efficient use of an idea should strike us as jarringly counterintuitive in a market economy. Our normal supposition is that the invisible hand of the market will work by permitting different companies to compete with each other. It is competition, not the skill or incentives of any given firm, that drives the market to efficiency. Nothing about the fact that a work was once subject to copyright or patent protection should change our intuition here. It is hard to imagine Senators, lobbyists, and scholars arguing with a straight face that the government should grant one company the perpetual right to control the sale of all paper clips in the country, on the theory that otherwise no one will have an incentive to make and distribute paper clips.24 We know from long experience that companies will make and distribute paper clips if they can sell them for more than it costs to supply them. The market for paper clips functions just fine without this type of government intervention. We can also predict with some confidence that if we did grant one company the exclusive right to make paper clips, the likely result would be an increase in the price and a decrease in the supply of paper clips. Yet supporters of the CTEA confidently predict exactly the opposite in the case of copyrighted works from the 1920s.
(via Freedom to Tinker)
