Copyright and Creative Incentives: What Do(n't) We Know?
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Description
The grounding justification for copyright law is that the grant of exclusive rights in artistic and literary works will incentivize authors to invest in new creativity. The economic theory undergirding this justification is straightforward. By preventing competition from copyists, copyright law helps to ensure that the rents (if any) generated by a particular act of artistic or literary creativity will flow to the creator, and not to a competitor. The improved prospect of gain will, it is believed, motivate additional creative effort. This is an entirely sensible story, but is it right? On that most foundational question, we have mostly surmise, and little empirical evidence. We have a small number of event studies designed to investigate copyright incentives. We also have a growing number of qualitative studies of copyright incentives in the branch of IP scholarship that some refer to as Intellectual Production Without Intellectual Property (“IP Without IP”) and others as the “Negative Space” scholarship. And we have a very small number of lab experiments investigating copyright incentives. Together, these scattered bits of empirical evidence suggest that the relationship between copyright and creativity is . . . complicated. There is evidence that copyright incentivizes some sorts of creativity sometimes—although that evidence is thin and contestable. Other evidence suggests that copyright incentives may, in some settings, do little or nothing to encourage creative output—but again, this evidence is far from definitive. The partial, hazy picture that has emerged so far calls to mind what Professor Fritz Machlup said about patents in a 1958 report to the United States Congress: “If we did not have a patent system, it would be irresponsible on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible on the basis of our present knowledge, to recommend abolishing it . . .” Some progress has been made since 1958 in understanding the effect of our patent laws on innovation and social welfare, although our understanding remains partial. The state of our knowledge regarding the net social benefits of copyright law is, by comparison, truly rudimentary. Copyright remains a legal regime driven by interest group lobbying and intuition, rather than evidence. This chapter highlights representative examples of the existing empirical scholarship on the relationship between copyright and creative incentives, and assesses how well the existing scholarship informs us regarding the supposed link between the two. The existing evidence is equivocal, and, most importantly, poorly developed relative to what would be necessary in order to provide better guidance for policymaking—a situation that should be profoundly frustrating for anyone who isn’t content to turn over copyright policymaking to a mix of interest group politics and nonutilitarian theories. The problem with relying on interest group politics should be obvious—the political economy of copyright has been, and remains, dominated by producer interests, and there is little reason to believe that producer-dominated policy making will reflect the public interest, or advance social (rather than merely producer) welfare. Reliance on deontic (nonutilitarian) justifications is just as unsatisfying. While the variety of Lockean labor-based arguments and Kantian or Hegelian “personality” theories that have been offered do succeed, at a general level, at explaining why we have some sort of copyright system rather than nothing at all, these nonutilitarian theories are not much use in explaining what the particular rules of the copyright system should be at a level relevant to lawmaking (the task that should matter to lawyers and lawmakers). Should the copyright term be longer or shorter? How close must copying be before we recognize it as “infringement”? Should copyright contain a “fair use” doctrine, and, if so, of what sort? What is the best distribution of rights as between first-stage creators and those who follow them and who use elements of pre-existing work in their own work? On all these questions, deontic theorists have little to say, not least because the moment deontic theories attempt to approach copyright policy questions at the level of particularity required to construct and justify an actual copyright system, they break down immediately into utilitarianism. In sum, it is difficult, given the parlous state of our knowledge about the effects of copyright rules on creative incentives, to offer helpful input to policymakers regarding the likely effect of many proposed changes to existing law. And in the absence of real evidence, policymakers are left at liberty to heed their biases and the blandishments of lobby groups. The balance of this chapter reviews some of the recent empirical scholarship investigating the link between copyright rules and creative incentives. We shall begin with a study that is perhaps the most supportive in the recent literature—albeit with substantial caveats—of the link between copyright and creativity. It is a historical study of Napoleonic-era Italy, and of the relationship between the introduction of copyright law and the output of Italian operas.
Source Publication
Framing Intellectual Property Law in the 21st Century: Integrating Incentives, Trade, Development, Culture, and Human Rights
Source Editors/Authors
Rochelle Cooper Dreyfuss, Elizabeth Siew-Kuan Ng
Publication Date
2018
Recommended Citation
Sprigman, Christopher J., "Copyright and Creative Incentives: What Do(n't) We Know?" (2018). Faculty Chapters. 1739.
https://gretchen.law.nyu.edu/fac-chapt/1739
