A New Uneasy Case for Copyright

Justice Stephen Breyer’s The Uneasy Case for Copyright is known for calling the attention of policymakers and scholars to the incentives-access paradigm of copyright law. Less-discussed, however, is its suggestion that copyright protection might inefficiently draw resources into the creation of copyrightable works given the potential spillover benefits of alternative uses to which creators might otherwise put their time. Although a full study of alternative career paths would be empirically challenging, one can simplify by asking what benefit society obtains from marginal copyrightable works – those that might not be created if copyright incentives were less robust – and whether there might be overentry into a market for copyrighted works due to decreasing marginal returns. This Article produces a new uneasy case for copyright doctrine, helping to show why many doctrines that seem suspect under an incentives-access paradigm of copyright law become more defensible once rent dissipation concerns are considered. As a tribute to Justice Breyer’s The Uneasy Case for Copyright, this Article seeks to assess a wide range of copyright doctrines to determine how well they accord with new insights learned from the economic literature on product differentiation. The analysis proceeds from the assumption that copyright law should seek to minimize the most egregious instances of crowding of copyright space – those in which effort and resources are expended to produce copyrighted works that are very close to other works in the product space. Part I canvasses a comprehensive range of copyright doctrines and argues that in many cases copyright law already seems to reflect rent dissipation concerns. Part II assesses copyright law as a whole, and, noting that while there are some media for which some form of incentive is needed to create works of sufficient quality, asks whether rewards systems could be designed that provide a superior alternative form of incentive for copyright