Author ORCID Identifier
0000-0003-2381-1028
Document Type
Article
Publication Date
2006
Keywords
Copyright, Technology, Supreme Court, Economic analysis, Exclusive rights, Fair use, Nonrivalrous nature of information
Abstract
Uncertainty as to the optimum extent of protection generally limits the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. This Article explores the relationship between copyright scope, doctrinal efficiency, and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law.
The usefulness of applying this framework in either rejecting or improving doctrinal recommendations is illustrated with reference to the predominant law and economics theories of fair use. The metric-driven analysis adopted in this Article demonstrates the general robustness of the market-failure approach to fair use and the relative frailty of the competing cost-benefit approach. The metric-driven analysis also indicates how the market-failure approach can be improved by adopting a more discriminating allocation of the burden of proof in fair use cases.
First Page
187
Publication Title
Tulane Law Review
Recommended Citation
Matthew J. Sag, Beyond Abstraction: The Law and Economics of Copyright Scope and Doctrinal Efficiency, 81 TUL. L. REV. 187 (2006).
Included in
Intellectual Property Law Commons, Law and Economics Commons, Supreme Court of the United States Commons